<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 27, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
THE DIAL CORP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 36-1169950
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
DIAL TOWER, PHOENIX, ARIZONA 85077
(602) 207-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
________________________
JOHN W. TEETS
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
THE DIAL CORP
DIAL TOWER, PHOENIX, ARIZONA 85077
(602) 207-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
_________________________
COPIES TO:
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<S> <C>
L. GENE LEMON, ESQ. JOEL S. KLAPERMAN
VICE PRESIDENT AND GENERAL COUNSEL SHEARMAN & STERLING
THE DIAL CORP 599 LEXINGTON AVENUE
DIAL TOWER NEW YORK, NEW YORK 10022
PHOENIX, ARIZONA 85077 (212) 848-4000
(602) 207-4000
</TABLE>
________________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
________________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
_________________________
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED(1) UNIT(2) PRICE(3) REGISTRATION FEE
____________________________________________________________________________________________________________________________________
Debt Securities.................... 100%
___________________________________ __________________
Debt Warrants...................... __
___________________________________
Preferred Stock.................... $500,000,000 __ $500,000,000 $174,414
___________________________________
Depositary Shares.................. __
___________________________________
Common Stock(4).................... __
___________________________________
Common Stock Warrants.............. __
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(1) In U.S. dollars or the equivalent thereof in one or more foreign currencies or units of one or more foreign currencies or
composite currencies. If any securities are issued at an original issue discount, then additional securities may be issued
so long as the aggregate initial offering price of all such securities, together with the initial offering price of all other
securities registered hereunder or previously registered under the Securities Act, does not exceed $500,000,000.
(2) Estimated solely for the purpose of computing the registration fee.
(3) No separate consideration will be received for Common Stock or Preferred Stock that are issued upon conversion of Debt
Securities, Preferred Stock, or Depositary Shares. The proposed maximum aggregate offering price has been estimated solely
for the purpose of computing the registration fee.
(4) Includes associated rights (the "Rights") to purchase Common Stock. Until the occurrence of certain prescribed events, none
of which has occurred, the Rights are not exercisable, are evidenced by the certificates representing the Common Stock, and
will be transferred along with and only with the Common Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
====================================================================================================================================
</TABLE>
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INTRODUCTORY NOTE
This Registration Statement contains a form of Basic Prospectus relating to
the Securities registered hereby and a form of Prospectus Supplement relating to
an offering of Medium-Term Notes of The Dial Corp, due nine months or more from
date of issuance. The Prospectus Supplement relates only to such Medium-Term
Notes and is one form of Prospectus Supplement which may be used by The Dial
Corp to offer its Securities under this Registration Statement.
<PAGE> 3
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus supplement shall not constitute an offer
to sell or the solicitation of an offer to buy nor shall there be any sale
of these securities in any State in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such State.
PROSPECTUS SUPPLEMENT
(To Prospectus Dated , 1994)
$500,000,000
THE DIAL CORP
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
The Dial Corp (the "Company") may offer from time to time its Medium-Term Notes,
in one or more series (the "Notes") having aggregate proceeds of up to
$500,000,000, subject to reduction at the option of the Company, including as a
result of the sale of other Securities of the Company under the Prospectus to
which this Prospectus Supplement relates. The Notes will be offered at varying
maturities nine months or more from their dates of issue and may be subject to
redemption at the option of the Company or repayment at the option of the holder
prior to maturity as set forth in a pricing supplement (the "Pricing
Supplement") to this Prospectus Supplement. Notes may pay a legal amount in
respect of both principal and interest amortized over the life of the Note (an
"Amortizing Note"). Unless otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of $1,000 and any larger
amount that is an integral multiple of $1,000. Each Note will bear interest
either at a fixed rate (a "Fixed Rate Note"), which may be zero in the case of
certain Notes issued at a price representing a discount from the principal
amount payable at maturity, or at a floating rate (a "Floating Rate Note") as
set forth in the Pricing Supplement. The Notes will rank pari passu with all
outstanding unsubordinated and unsecured indebtedness of the Company. See
"Description of Notes."
Unless otherwise specified in the applicable Pricing Supplement, interest on
each Fixed Rate Note will accrue from its date of issue and will be payable
semiannually on each January 15, and July 15 and at maturity (or date of earlier
redemption or repayment). Interest on each Floating Rate Note will accrue from
its date of issue and will be payable monthly, quarterly, semiannually, annually
or otherwise as specified in the applicable Pricing Supplement, and at maturity
(or date of earlier redemption or repayment). The issue price, the maturity
date, any applicable interest rate or interest rate formula, any redemption and
repayment provisions and any other terms applicable to each Note will be
established at the time of issuance of such Note and set forth in the applicable
Pricing Supplement.
Unless otherwise specified in the Pricing Supplement, each Note will be issued
only in book-entry form and will be represented by a global security registered
in the name of a nominee of The Depository Trust Company, as Depositary (a
"Book-Entry Note"). Beneficial interests in Book-Entry Notes will be shown on,
and transfers thereof will be effected only through, records maintained by the
Depositary (with respect to beneficial interests of participants) and its
participants. See "Description of Notes -- Book-Entry System."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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<CAPTION>
PRICE TO AGENTS' PROCEEDS TO
PUBLIC(1) COMMISSION(2) COMPANY(2)(3)
<S> <C> <C> <C>
Per Note............................. 100.000% .125%-.750% 99.250%-99.875%
Total................................ $500,000,000 $625,000-$3,750,000 $496,250,000-$499,375,000
</TABLE>
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(1) Unless otherwise specified in the applicable Pricing Supplement, the Notes
will be sold at 100% of their principal amount.
(2) For any Note with a maturity from nine months to thirty years from its date
of issue, the Company will pay a commission to Salomon Brothers Inc,
Citicorp Securities, Inc., Goldman, Sachs & Co. and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated (each an "Agent" and
collectively the "Agents"), in the form of a discount ranging from .125% to
.750% of the principal amount of any Note, depending upon maturity, sold
through such Agents. The commission applicable to any Note with a maturity
of greater than thirty years from its date of issue will be determined at
the time of sale. The Company may also sell Notes to an Agent, as principal,
at a discount for resale to investors, other dealers or other purchasers at
varying prices related to prevailing market prices at the time of resale or,
if set forth in the applicable pricing supplement, at a fixed offering
price, as determined by such Agent. Unless otherwise specified in the
applicable Pricing Supplement, any Note sold to an Agent as principal will
be purchased by such Agent at a price equal to 100% of the principal amount
thereof less a percentage equal to the commission applicable to an agency
sale of a Note of identical maturity. The Company may also sell Notes
directly to investors on its own behalf, in which case no commission will be
payable. See "Plan of Distribution."
(3) Before deduction of expenses payable by the Company in connection with the
offering of the Notes estimated to be $500,000, including reimbursement of
certain of the Agents' expenses.
The Notes are being offered on a continuous basis by the Company through the
Agents, each of which is authorized to solicit purchases of the Notes. The
Company reserves the right to sell Notes directly on its own behalf in those
jurisdictions where it is authorized to do so. The Notes will not be listed on
any securities exchange. There can be no assurance that the Notes offered by
this Prospectus Supplement will be sold or that there will be a secondary market
for any of the Notes. The Company reserves the right to withdraw, cancel or
modify the offer made hereby without notice. The Company may reject any offer,
in whole or in part. See "Plan of Distribution."
SALOMON BROTHERS INC
CITICORP SECURITIES, INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
The date of this Prospectus Supplement is , 1994.
<PAGE> 4
DESCRIPTION OF NOTES
The following description of the particular terms of the Notes offered
hereby supplements, and to the extent inconsistent therewith replaces, the
description of the general terms and provisions of the Securities (as such term
is used in the accompanying Prospectus) set forth in the accompanying
Prospectus, to which description reference is hereby made. The terms and
conditions set forth herein will apply to each Note unless otherwise specified
in the applicable Pricing Supplement and the related Note.
GENERAL
The Notes will be issued under an indenture, dated as of April 1, 1993 (the
"Senior Indenture"), between the Company and The Chase Manhattan Bank, N.A., as
trustee (the "Trustee"). The Notes will rank as to priority of payment pari
passu with all other unsubordinated and unsecured indebtedness of the Company.
The Notes may be issued, from time to time, in one or more series under the
Senior Indenture and are limited to aggregate proceeds of $500,000,000, subject
to reduction at the option of the Company, including as a result of the sale of
other Securities of the Company. See "Plan of Distribution."
The statements herein concerning the Notes and the Senior Indenture do not
purport to be complete. They are qualified in their entirety by reference to the
provisions of the Senior Indenture, including the definitions of certain terms
used herein without definition.
The Notes will be offered on a continuous basis and will mature on any day
nine months or more from the date of issue, as selected by the purchaser and
agreed to by the Company, and may be subject to redemption at the option of the
Company or repayment at the option of the holder prior to maturity. Each Note
will bear interest at either (a) a fixed rate, which may be zero in the case of
certain Notes issued at a price representing a discount from the principal
amount payable at maturity or (b) a rate or rates determined by reference to the
interest rate base or combination of interest rate bases (each a "Base Rate")
specified in the applicable Pricing Supplement, which may be adjusted by a
Spread and/or Spread Multiplier (each as defined below).
The Notes will be issued in fully registered form only, without coupons.
Unless otherwise provided in the applicable Pricing Supplement, the Notes will
be issued in denominations of $1,000 or any amount in excess thereof which is an
integral multiple of $1,000.
Interest rates offered by the Company with respect to the Notes may differ
depending upon the aggregate principal amount of Notes purchased in any
transaction.
The applicable Pricing Supplement will indicate either that a Note cannot
be redeemed prior to maturity or that a Note will be redeemable at the option of
the Company on or after a specified date at prices declining from a specified
premium, if any, to par after a later date, together with accrued interest to
the date of redemption, and if the Notes are subject to a sinking fund. Each
Note may pay a legal amount in respect of both principal and interest amortized
over the life of the Note.
The applicable Pricing Supplement will indicate whether a Note may be
subject to repayment at the option of the holder and, if such Note is subject to
such repayment, the date or dates specified prior to maturity and the applicable
price or prices (together with accrued interest, if any, and premium, if any),
to the date or dates of repayment.
Unless otherwise provided in the applicable Pricing Supplement, each Note
will be issued as a Book-Entry Note registered in the name of the nominee of the
Depositary. So long as the Depositary or its nominee is the registered owner of
such Book-Entry Notes, the Depositary or such nominee, as the case may be, will
be considered the sole owner or holder of the Notes for all purposes under the
Indenture. Except as set forth under "Book-Entry System," Book-Entry Notes will
not be issuable in certificated form.
The Notes may be issued as original issue discount notes (each an "Original
Issue Discount Note") which will be offered at a discount from the principal
amount thereof due at the stated maturity of such Notes. There may not be any
periodic payments of interest on Original Issue Discount Notes. In the event of
an acceleration of the maturity of any Original Issue Discount Note, the amount
payable to the holder of such Original Issue Discount Note upon such
acceleration will be determined in accordance with the Pricing
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<PAGE> 5
Supplement and the terms of such security, but will be an amount less than the
amount payable at the maturity of the principal of such Original Issue Discount
Note. For federal income tax considerations with respect to the Original Issue
Discount Notes, see "Certain United States Federal Income Tax Consequences"
herein.
The Pricing Supplement relating to each Note will describe the following
terms: (1) whether such Note is a Fixed Rate Note or a Floating Rate Note; (2)
the price (expressed as a percentage of the aggregate principal amount thereof)
at which such Note will be issued (the "Issue Price"); (3) the trade date; (4)
the date on which such Note will be issued (the "Original Issue Date"); (5) the
date on which such Note will mature (the "Maturity Date"); (6) if such Note is a
Fixed Rate Note, the rate per annum at which such Note will bear interest (the
"Interest Rate"); (7) if such Note is a Floating Rate Note, the Base Rate, the
Initial Interest Rate, the Interest Reset Dates, the Interest Payment Dates, the
Index Maturity, the Maximum Interest Rate and the Minimum Interest Rate, if any,
and the Spread or Spread Multiplier, if any (each as defined below), and any
other terms relating to the particular method of calculating the interest rate
for such Note; (8) whether such Note may be redeemed at the option of the
Company or repaid at the option of the holder prior to maturity, and, if so, the
provisions relating to such redemption or repayment; (9) whether such Note is an
Original Issue Discount Note, and, if so, the yield to maturity; (10) whether
such Note is an Amortizing Note, and, if so, the dates and amounts that
principal is payable; and (11) any other terms of such Note not inconsistent
with the provisions of the Indenture.
"Business Day" means any day other than a Saturday or Sunday that is (a)
neither a legal holiday nor a day on which banking institutions are authorized
or obligated by law, regulation or executive order to close in The City of New
York and (b) with respect to Notes that will bear interest based on a specified
percentage of London interbank offered rate quotations ("LIBOR"), a London
Banking Day. "London Banking Day" means a day on which dealings in deposits in
U.S. dollars are transacted in the London interbank market.
PAYMENT OF PRINCIPAL AND INTEREST
The principal of and any premium and interest on each Note will be paid by
the Company in U.S. dollars. Until the Notes are paid or payment thereof is duly
provided for, the Company will, at all times, maintain a paying agent in The
City of New York (a "Paying Agent"), capable of performing the duties described
herein to be performed by the Paying Agent. The Company has initially appointed
The Chase Manhattan Bank, N.A. to serve as Paying Agent.
Unless otherwise specified in the applicable Pricing Supplement, interest
on a Note which is not a Book-Entry Note (other than interest paid on the
Maturity Date or upon earlier redemption or repayment) will be paid, except as
provided below, by mailing a check to the holder at the address of such holder
appearing on the security register for the Notes on the applicable Regular
Record Date (as defined below). Notwithstanding the foregoing, a holder of
$10,000,000 or more in aggregate principal amount of Notes of like tenor and
terms which are not Book-Entry Notes will be entitled to receive payments by
wire transfer of immediately available funds, but only if appropriate wire
transfer instructions shall have been received in writing by the Paying Agent
not less than ten Business Days prior to the applicable Interest Payment Date.
Payments of interest on a Book-Entry Note will be made in accordance with the
arrangements from time to time in place between the Paying Agent and the holder
thereof. Beneficial owners of Book-Entry Notes are expected to be paid in
accordance with the Depositary's and its participants' procedures in effect from
time to time as described under "Book-Entry System" below.
The regular record date (the "Regular Record Date") with respect to any
date (an "Interest Payment Date") on which interest on a Note is due and payable
shall be the date 15 calendar days immediately preceding such Interest Payment
Date, whether or not such date shall be a Business Day. Interest payable and
punctually paid or duly provided for on any Interest Payment Date will be paid
to the person in whose name a Note is registered at the close of business on the
Regular Record Date corresponding to such Interest Payment Date; provided,
however, that unless otherwise specified in the applicable Pricing Supplement,
in the case of a Note having an Original Issue Date between a Regular Record
Date and the Interest Payment Date relating to such Regular Record Date,
interest for the period beginning on the Original Issue Date and ending on such
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Interest Payment Date shall be paid on the succeeding Interest Payment Date to
the registered holder on the Regular Record Date for the succeeding Interest
Payment Date; provided, further, that interest payable at maturity or upon
earlier redemption or repayment will be payable to the person to whom principal
shall be payable.
Unless otherwise specified in the applicable Pricing Supplement, payments
of principal, premium, if any, and interest, if any, on the Notes at maturity or
upon earlier redemption or repayment will be made, if at maturity or upon
earlier redemption, then on the Maturity Date or the date fixed for redemption,
as applicable, upon surrender of the Notes accompanied by appropriate wire
instructions at the office of the Paying Agent in The City of New York, and, if
upon repayment prior to maturity, then on the applicable date for repayment,
provided the holder shall have complied with the requirements for repayment set
forth in the Notes. All such payments shall be made in immediately available
funds; provided that the Notes to be paid that are not Book-Entry Notes
presented to the office of the Paying Agent in The City of New York in time for
the Paying Agent to make such payments in such funds in accordance with its
normal procedures. If an Interest Payment Date with respect to any Floating Rate
Note would otherwise fall on a day that is not a Business Day with respect to
such Note, such Interest Payment Date will be postponed to the next succeeding
Business Day (or, in the case of a LIBOR Note, if such day falls in the next
calendar month, the next preceding Business Day). If the maturity date (or date
of redemption or repayment) of any Floating Rate Note would fall on a day that
is not a Business Day, the payment of principal, premium, if any, and interest
may be made on the next succeeding Business Day, and no interest on such payment
will accrue for the period from and after the maturity date (or the date of
redemption or repayment). In the case of Book-Entry Notes, such payments of
principal, premium, if any, and interest, if any, will be made to the Depositary
or its nominee as the registered owner of such Book-Entry Notes. Payments to
beneficial owners of Book-Entry Notes are expected to be made through the
Depositary and its participants. See "Description of Securities -- Global
Securities" in the accompanying Prospectus.
Unless otherwise specified in the applicable Pricing Supplement, all
percentages resulting from any calculation of the rate of interest on a Floating
Rate Note will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a percentage point rounded
upward, and all dollar amounts used in or resulting from such calculation on
Floating Rate Notes will be rounded to the nearest cent (with one half cent
being rounded upward).
FIXED RATE NOTES
Each Fixed Rate Note will bear interest from its Original Issue Date at the
annual interest rate or rates specified on the face thereof and in the
applicable Pricing Supplement until the principal amount thereof is paid or
payment thereof is duly provided for. Unless otherwise set forth in the
applicable Pricing Supplement, interest on Fixed Rate Notes will be payable
semiannually on January 15 and July 15 of each year, and at maturity or upon
earlier redemption or repayment to the persons to whom principal is payable
(which, in the case of Book-Entry Notes, will be the Depositary or its nominee).
Each payment of interest in respect of an Interest Payment Date shall include
interest accrued to, but excluding, such Interest Payment Date and payments of
interest at maturity or upon earlier redemption or repayment shall include
interest accrued to, but excluding, the Maturity Date or the date of redemption
or repayment. Any payment on any Fixed Rate Note due on any day which is not a
Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on the due
date, and no interest shall accrue for the period from and after such date.
Interest on Fixed Rate Notes will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
FLOATING RATE NOTES
Each Floating Rate Note will bear interest from its Original Issue Date at
a rate determined by reference to the Base Rate which may be adjusted by a
Spread and/or Spread Multiplier, if any. The applicable Pricing Supplement will
designate one or more of the following Base Rates as applicable to each Floating
Rate Note: (a) the Commercial Paper Rate (a "Commercial Paper Rate Note"), (b)
LIBOR (a "LIBOR Note"), (c) the Treasury Rate (a "Treasury Rate Note"), (d) the
CD Rate (a "CD Rate Note"), (e) the Federal
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<PAGE> 7
Funds Rate (a "Federal Funds Rate Note"), (f) the Prime Rate (a "Prime Rate
Note"), (g) the CMT Rate (a "CMT Rate Note") or (h) such other Base Rate or
formula as is set forth in such Pricing Supplement and in such Floating Rate
Note. The "Index Maturity" for any Floating Rate Note is the period until
maturity of the instrument or obligation from which the Base Rate is calculated.
As specified in the applicable Pricing Supplement, a Floating Rate Note may
also have either or both of the following: (i) a maximum limitation, or ceiling,
on the rate of interest that may be applicable during any Interest Period (a
"Maximum Interest Rate") and (ii) a minimum limitation, or floor, on the rate of
interest that may accrue during any Interest Period (a "Minimum Interest Rate").
In addition to any Maximum Interest Rate that may be applicable to any Floating
Rate Note pursuant to the above provisions, the interest rate on a Floating Rate
Note will in no event be higher than the maximum rate permitted by applicable
law, as the same may be modified by United States law of general application.
The Notes will be governed by the law of the State of New York and, under such
law, the maximum rate of interest on the date of this Prospectus Supplement,
with certain exceptions, is 25% per annum on a simple interest basis. This limit
may not apply to Notes in which $2,500,000 or more has been invested.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semiannually or annually (each day on which the rate
of interest is reset being herein referred to as an "Interest Reset Date"), as
specified in the applicable Pricing Supplement. Unless otherwise specified in
the applicable Pricing Supplement, the Interest Reset Date will be, in the case
of Floating Rate Notes that reset daily, each Business Day; in the case of
Floating Rate Notes (other than Treasury Rate Notes) that reset weekly,
Wednesday of each week; in the case of Treasury Rate Notes that reset weekly,
Tuesday of each week (except as hereinafter provided); in the case of Floating
Rate Notes that reset monthly, the third Wednesday of each month; in the case of
Floating Rate Notes that reset quarterly, the third Wednesday of March, June,
September and December of each year; in the case of Floating Rate Notes that
reset semiannually, the third Wednesday of each of the two months of each year
specified in the applicable Pricing Supplement; and in the case of Floating Rate
Notes that reset annually, the third Wednesday of the month of each year
specified in the applicable Pricing Supplement. Unless otherwise specified in
the applicable Pricing Supplement, if any Interest Reset Date for any Floating
Rate Note that resets daily or weekly is not a Business Day, such Interest Reset
Date shall be postponed to the next succeeding Business Day, except that, in the
case of a LIBOR Note, if such Business Day would fall in the next succeeding
calendar month, such Interest Reset Date shall be the next preceding Business
Day.
Interest on each Floating Rate Note will be payable monthly, quarterly,
semiannually, or annually as specified in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement and except as
provided below, the Interest Payment Date will be, in the case of Floating Rate
Notes with a daily, weekly or monthly Interest Period, the third Wednesday of
each month or the third Wednesday of March, June, September and December of each
year (as specified in the applicable Pricing Supplement); in the case of
Floating Rate Notes with a quarterly Interest Period, the third Wednesday of
March, June, September and December of each year; in the case of Floating Rate
Notes with a semiannual Interest Period, the third Wednesday of each of the two
months of each year specified in the applicable Pricing Supplement; and in the
case of Floating Rate Notes with an annual Interest Period, the third Wednesday
of the month of each year specified in the applicable Pricing Supplement and, in
each case, the Maturity Date (or date of redemption or repayment). If such an
Interest Payment Date is not a Business Day, such Interest Payment Date will be
postponed to the succeeding Business Day, except that in the case of a LIBOR
Note, if such Business Day is in the succeeding calendar month, such Interest
Payment Date will be the preceding Business Day.
The "Spread" is the number of basis points (one basis point equals
one-hundredth of a percentage point) specified in the applicable Pricing
Supplement as being applicable to the interest rate for such Floating Rate Note,
and the "Spread Multiplier" is the percentage specified in the applicable
Pricing Supplement as being applicable to the interest rate for such Floating
Rate Note.
Unless otherwise specified in the applicable Pricing Supplement, an
interest payment for Floating Rate Notes (except in the case of Floating Rate
Notes which reset daily or weekly) shall be the amount of interest
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<PAGE> 8
accrued from and including the Original Issue Date, or from and including the
last Interest Payment Date to which interest has been paid, as the case may be,
to, but excluding, the next following Interest Payment Date set forth in such
Pricing Supplement (an "Interest Period") or to, but excluding, the Maturity
Date or the date of redemption or repayment. In the case of a Floating Rate Note
on which interest is reset daily or weekly, interest payments shall be the
amount of interest accrued from and including the Original Issue Date or from
and including the last date for which interest has been paid, as the case may
be, to, but excluding, the Regular Record Date immediately preceding such
Interest Payment Date, except that at maturity or redemption the interest
payable will include interest accrued to, but excluding, the Maturity Date or
date of redemption.
With respect to a Floating Rate Note, accrued interest shall be calculated
by multiplying the principal amount of such Floating Rate Note by an accrued
interest factor. Such accrued interest factor will be computed by adding the
interest factors calculated for each day in the Interest Period or from the last
date from which accrued interest is being calculated. The interest factor for
each such day is computed by dividing the interest rate applicable to such day
by 360 in the case of Commercial Paper Rate Notes, LIBOR Notes, CD Rate Notes,
Federal Funds Rate Notes and Prime Rate Notes, by the number of days in the year
in the case of Treasury Rate Notes or CMT Rate Notes, or by such other number of
days as set forth in the Pricing Supplement in the case of Notes carrying
another Base Rate. The interest rate applicable to any other day is the interest
rate for the immediately preceding Interest Reset Date (or, if none, the Initial
Interest Rate, as described below).
Unless otherwise specified in the applicable Pricing Supplement, The Chase
Manhattan Bank, N.A. shall be the calculation agent (in such capacity, the
"Calculation Agent") with respect to the Floating Rate Notes. Upon the request
of the holder of any Floating Rate Note, the Calculation Agent will provide the
interest rate then in effect and, if determined, the interest rate that will
become effective on the next Interest Reset Date with respect to such Floating
Rate Note.
The interest rate in effect with respect to a Floating Rate Note from the
Original Issue Date to the first Interest Reset Date (the "Initial Interest
Rate") will be specified in the applicable Pricing Supplement. The interest rate
for each subsequent Interest Reset Date will be determined by the Calculation
Agent as follows:
Commercial Paper Rate Notes
Commercial Paper Rate Notes will bear interest at the interest rates
(calculated by reference to the Commercial Paper Rate and the Spread, if any,
and/or Spread Multiplier, if any) specified in the Commercial Paper Rate Notes
and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Commercial Paper Rate" for each Interest Reset Date will be determined by the
Calculation Agent as of the second Business Day prior to such Interest Reset
Date (a "Commercial Paper Interest Determination Date") and shall be the Money
Market Yield (as defined below) on such date of the rate for commercial paper
having the Index Maturity specified in the applicable Pricing Supplement, as
such rate shall be published by the Board of Governors of the Federal Reserve
System in "Statistical Release H.15(519), Selected Interest Rates"
("H.15(519)"), or any successor publication, under the heading "Commercial
Paper." In the event that such rate is not published prior to 9:00 A.M., New
York City time, on the Calculation Date (as defined below), then the Commercial
Paper Rate shall be the Money Market Yield on such Commercial Paper Interest
Determination Date of the rate for commercial paper of the specified Index
Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 P.M. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Commercial Paper." If by
3:00 P.M., New York City time, on such Calculation Date such rate is not yet
published in either H.15(519) or Composite Quotations, then the Commercial Paper
Rate shall be the Money Market Yield of the arithmetic mean of the offered rates
as of 11:00 A.M., New York City time, on that Commercial Paper Interest
Determination Date, of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the
specified Index Maturity placed for an industrial issuer whose bond rating is
"AA," or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as
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aforesaid by the Calculation Agent are not quoting offered rates as mentioned in
this sentence, the Commercial Paper Rate will be the Commercial Paper Rate in
effect on such Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D X 360
______________ X 100
360 - (DXM)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the period for which interest is being calculated.
The interest rate on Commercial Paper Rate Notes for each Interest Reset
Date shall be the Commercial Paper Rate applicable to such Interest Reset Date
plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if
any, as specified in the applicable Pricing Supplement; provided, however, that
(i) the interest rate in effect for the period from the Original Issue Date to
the first Interest Reset Date will be the Initial Interest Rate and (ii) the
interest rate in effect for the ten days immediately prior to maturity or
repayment will be that in effect on the tenth day preceding such maturity or
repayment. The "Calculation Date" pertaining to a Commercial Paper Interest
Determination Date will be the first to occur of either (a) the tenth Business
Day after such Commercial Paper Interest Determination Date or (b) the second
Business Day preceding the date any payment is required to be made for any
period following the applicable Interest Reset Date.
LIBOR Notes
LIBOR Notes will bear interest at the interest rates (calculated by
reference to LIBOR and the Spread, if any, and/or Spread Multiplier, if any)
specified in the LIBOR Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, LIBOR for
each Interest Reset Date will be determined by the Calculation Agent in
accordance with the following provisions:
(i) With respect to an Interest Reset Date relating to a LIBOR Note,
either, as specified in the applicable Pricing Supplement: (a) the
arithmetic mean of the offered rates for deposits in the applicable
currency specified in the Pricing Supplement (or, if no such currency is
specified, U.S. dollars) for the period of the Index Maturity specified in
the applicable Pricing Supplement, commencing on the second London Banking
Day immediately following such Interest Reset Date, which appear on the
Reuters Screen LIBO Page as of 11:00 A.M., London time, on the Interest
Reset Date, if at least two such offered rates appear on the Reuters Screen
LIBO Page ("LIBOR Reuters") or (b) the rate for deposits in U.S. dollars
having the Index Maturity designated in the applicable Pricing Supplement,
commencing on the second London Banking Day immediately following that
Interest Reset Date, that appears on the Telerate Page 3750 as of 11:00
A.M., London time, on that Interest Reset Date ("LIBOR Telerate"). Unless
otherwise indicated in the applicable Pricing Supplement, "Reuters Screen
LIBO Page" means the display designated as Page "LIBO" on the Reuters
Monitor Money Rate Service (or such other page as may replace the LIBO page
on that service for the purpose of displaying London interbank offered
rates of major banks). "Telerate Page 3750" means the display designated as
page "3750" on the Telerate Service (or such other page as may replace the
3750 page on that service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for U.S. dollar deposits). If neither LIBOR
Reuters nor LIBOR Telerate is specified in the applicable Pricing
Supplement, LIBOR will be determined as if LIBOR Telerate had been
specified. In the case where (a) above applies, if fewer than two offered
rates appear on the Reuters Screen LIBO Page, or, in the case where (b)
above applies if no rate appears on the Telerate Page 3750, as applicable,
LIBOR in respect of that Interest Reset Date will be determined as if the
parties had specified the rate described in (ii) below.
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(ii) With respect to an Interest Reset Date on which this provision
applies, LIBOR will be determined on the basis of the rates at which
deposits in U.S. dollars having the Index Maturity designated in the
applicable Pricing Supplement are offered at approximately 11:00 A.M.,
London time, on such Interest Reset Date by four major banks ("Reference
Banks") in the London interbank market selected by the Calculation Agent to
prime banks in the London interbank market commencing on the second London
Banking Day immediately following such Interest Reset Date and in a
principal amount of not less than U.S. $1,000,000 that is representative
for a single transaction in such market at such time. The Calculation Agent
will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are
provided, LIBOR for such Interest Reset Date will be the arithmetic mean of
such quotations. If fewer than two quotations are provided, LIBOR for such
Interest Reset Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., New York City time, on such Interest Reset Date
by three major banks (which may include the Agents) in The City of New York
selected by the Calculation Agent for loans in U.S. dollars to leading
European banks having the specified Index Maturity designated in the
applicable Pricing Supplement commencing on the second London Banking Day
immediately following such Interest Reset Date and in a principal amount
equal to an amount of not less than U.S. $1,000,000 that is representative
for a single transaction in such market at such time; provided, however,
that if the banks selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR will be LIBOR then in effect
on such Interest Reset Date.
The interest rate on LIBOR Notes for each Interest Reset Date shall be
LIBOR plus or minus the Spread, if any, or multiplied by the Spread Multiplier,
if any, as specified in the applicable Pricing Supplement; provided, however,
that (i) the interest rate in effect for the period from the Original Issue Date
to the first Interest Reset Date will be the Initial Interest Rate and (ii) the
interest rate in effect for the ten days immediately prior to maturity or
repayment will be that in effect on the tenth day preceding such maturity or
repayment.
Treasury Rate Notes
Treasury Rate Notes will bear interest at the interest rates (calculated by
reference to the Treasury Rate and the Spread, if any, and/or Spread Multiplier,
if any) specified in the Treasury Rate Notes and in the applicable Pricing
Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "Treasury
Rate" means, with respect to any Interest Reset Date, the rate for the auction
held on the Treasury Rate Determination Date (as defined below) of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified in the applicable Pricing Supplement as published in H.15(519) under
the heading "U.S. Government Securities -- Treasury bills -- auction average
(investment)" or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date (as defined below) pertaining to such Treasury Rate
Determination Date, the auction average rate (expressed as a bond equivalent
yield, on the basis of a year of 365 or 366 days, as applicable, and applied on
a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the auction of Treasury bills having
the Index Maturity designated in the applicable Pricing Supplement are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date or if no such auction is held on such Treasury Rate
Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent yield, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury Rate
Determination Date, of three leading primary United States government securities
dealers selected by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the specified Index Maturity; provided, however,
that if the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate for such Interest Reset
Date will be the Treasury Rate in effect on such Treasury Rate Determination
Date.
The "Treasury Rate Determination Date" for any Interest Reset Date will be
the day of the week in which such Interest Reset Date falls on which Treasury
bills would normally be auctioned, but if an auction
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shall fall on any Interest Reset Date, then the Interest Reset Date shall
instead be the first Business Day following such auction. Treasury bills are
normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except such auction may be held on the preceding Friday. If as the result of a
legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Treasury Rate Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If no auction is held in any week (or on
the preceding Friday), the Treasury Rate Determination Date shall be the Monday
of the week in which the Interest Reset Date falls.
The interest rate on Treasury Rate Notes for each Interest Reset Date shall
be the Treasury Rate plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, as specified in the applicable Pricing Supplement;
provided, however, that (i) the interest rate in effect for the period from the
Original Issue Date to the first Interest Reset Date will be the Initial
Interest Rate and (ii) the interest rate in effect for the ten days immediately
prior to maturity or repayment will be that in effect on the tenth day preceding
such maturity or repayment. The "Calculation Date" pertaining to a Treasury Rate
Determination Date will be the first to occur of either (a) the tenth Business
Day after such Treasury Rate Determination Date or (b) the second Business Day
preceding the date any payment is required to be made for any period following
the applicable Interest Reset Date.
CD Rate Notes
CD Rate Notes will bear interest at the interest rates (calculated by
reference to the CD Rate and the Spread, if any, and/or Spread Multiplier, if
any) specified in the CD Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the "CD
Rate" with respect to each Interest Reset Date will be determined by the
Calculation Agent as of the second Business Day prior to such Interest Reset
Date (a "CD Interest Determination Date") and shall be the rate on such date for
negotiable certificates of deposit having the Index Maturity designated in the
applicable Pricing Supplement as published in H.15(519) under the heading "CDs
(Secondary Market)" or, if not so published by 9:00 A.M., New York City time, on
the Calculation Date (as defined below) pertaining to such CD Interest
Determination Date, then the CD Rate shall be the rate on such CD Interest
Determination Date for negotiable certificates of deposit having the specified
Index Maturity as published in Composite Quotations under the heading
"Certificates of Deposit." If such rate is not so published by 3:00 P.M., New
York City time, on such Calculation Date, then the CD Rate on such CD Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York
City time, on such CD Interest Determination Date, of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in The City of New
York selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks of the highest credit standing (in the
market for negotiable certificates of deposit) with a remaining maturity closest
to the specified Index Maturity in a denomination of U.S.$5,000,000; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate will be the CD Rate in
effect on such CD Interest Determination Date.
The interest rate on CD Rate Notes for each Interest Reset Date shall be
the CD Rate applicable to such Interest Reset Date, plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, as specified in the
applicable Pricing Supplement; provided, however, that (i) the interest rate in
effect for the period from the Original Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and (ii) the interest rate in effect for
the ten days immediately prior to maturity or repayment will be that in effect
on the tenth day preceding such maturity or repayment. The "Calculation Date"
pertaining to a CD Interest Determination Date will be the first to occur of
either (a) the tenth Business Day after such CD Interest Determination Date or
(b) the second Business Day preceding the date any payment is required to be
made for any period following the applicable Interest Reset Date.
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Federal Funds Rate Notes
Federal Funds Rate Notes will bear interest at the interest rates
(calculated by reference to the Federal Funds Rate and the Spread, if any,
and/or Spread Multiplier, if any) specified in the Federal Funds Rate Notes and
in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Federal Funds Rate" with respect to each Interest Reset Date will be determined
by the Calculation Agent as of the second Business Day prior to such Interest
Reset Date (a "Federal Funds Interest Determination Date"), and shall be the
rate on that date for Federal Funds as published in H.15 (519) under the heading
"Federal Funds (Effective)," or, if not so published by 9:00 A.M., New York City
time, on the Calculation Date (as defined below) pertaining to such Federal
Funds Interest Determination Date, the Federal Funds Rate will be the rate on
such Federal Funds Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If such rate is not
so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Interest Determination Date, the Federal Funds
Rate for such Federal Funds Reset Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction in
overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation Agent as of
9:00 A.M., New York City time, on such Federal Funds Interest Determination
Date; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate will be the Federal Funds Rate in effect on such Federal Funds
Interest Determination Date.
The interest rate on Federal Funds Rate Notes for each Interest Reset Date
shall be the Federal Funds Rate applicable to such Interest Reset Date, plus or
minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as
specified in the applicable Pricing Supplement; provided, however, that (i) the
interest rate in effect for the period from the Original Issue Date to the first
Interest Reset Date shall be the Initial Interest Rate; and (ii) the interest
rate in effect for the ten days immediately prior to maturity or repayment will
be that in effect on the tenth day preceding such maturity or repayment. The
"Calculation Date" pertaining to a Federal Funds Interest Determination Date
will be the first to occur of either (a) the tenth Business Day after such
Federal Funds Interest Determination Date or (b) the second Business Day
preceding the date any payment is required to be made for any period following
the applicable Interest Reset Date.
Prime Rate Notes
Prime Rate Notes will bear interest at the interest rates (calculated by
reference to the Prime Rate and the Spread, if any, and/or Spread Multiplier, if
any) specified in the Prime Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the "Prime
Rate" with respect to each Interest Reset Date will be determined by the
Calculation Agent as of the second Business Day prior to such Interest Reset
Date (a "Prime Interest Determination Date") and shall be the rate set forth on
such date in H.15(519) under the heading "Bank Prime Loan," or if not so
published prior to 9:00 A.M., New York City time, on the Calculation Date (as
defined below) pertaining to such Prime Interest Determination Date, then the
Prime Rate will be determined by the Calculation Agent and will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appear on the Reuters Screen NYMF Page (as defined below) as such bank's prime
rate or base lending rate as in effect for the Prime Interest Determination
Date. If fewer than four such rates but more than one such rate appear on the
Reuters Screen NYMF Page for the Prime Interest Determination Date, the Prime
Rate will be determined by the Calculation Agent and will be the arithmetic mean
of the prime rate quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than two such rates appear on the
Reuters Screen NYMF Page, the Prime Rate will be determined by the Calculation
Agent on the basis of the rates furnished in The City of New York by the
appropriate number of substitute banks or trust companies organized and doing
business under the laws of the United States, or any state thereof, having total
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equity capital of at least $500,000,000 and being subject to supervision or
examination by Federal or State authority, selected by the Calculation Agent to
provide such rate or rates; provided, however, that if the banks selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate will be
the Prime Rate in effect on such Prime Interest Determination Date. "Reuters
Screen NYMF Page" means the display designated as page "NYMF" on the Reuters
Monitor Money Rates Service (or such other page as may replace the NYMF page on
that service for the purpose of displaying prime rates or base lending rates of
major United States banks).
The interest rate on Prime Rate Notes for each Interest Reset Date shall be
the Prime Rate applicable to such Interest Reset Date, plus or minus the Spread,
if any, or multiplied by the Spread Multiplier, if any, as specified in the
applicable Pricing Supplement; provided, however, that (i) the interest rate in
effect for the period from the Original Issue Date to the first Interest Reset
Date shall be the Initial Interest Rate and (ii) the interest rate in effect for
the ten days immediately prior to maturity or repayment will be that in effect
on the tenth day preceding such maturity or repayment. The "Calculation Date"
pertaining to a Prime Interest Determination Date will be the first to occur of
either (a) the tenth Business Day after such Prime Interest Determination Date
or (b) the second Business Day preceding the date any payment is required to be
made for any period following the applicable Interest Reset Date.
CMT Rate Notes
CMT Rate Notes will bear interest at the rates (calculated with reference
to the CMT Rate and the spread and/or Spread Multiplier, if any) specified in
such CMT Rate Notes and any applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "CMT Rate"
means, with respect to any Interest Determination Date relating to a CMT Rate
Note or any Floating Rate Note for which the interest rate is determined with
reference to the CMT Rate (a "CMT Rate Interest Determination Date"), the rate
displayed on the Designated CMT Telerate Page under the caption ". . .Treasury
Constant Maturities. . .Federal Reserve Board Release H.15. . .Mondays
Approximately 3:45 P.M.," under the column for the Designated CMT Maturity Index
for (i) if the Designated CMT Telerate Page is 7055, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the week, or the month, as applicable, ended immediately preceding the
week in which the related CMT Rate Interest Determination Date occurs. If such
rate is no longer displayed on the relevant page, or if not displayed by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 P.M., New York City time, on the related Calculation Date, then
the CMT Rate for the CMT Rate Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately 3:30
P.M. (New York City time) on the CMT Rate Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in The City of New
York selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes") with
an original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent cannot obtain three such Treasury Note
quotations,
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the CMT Rate for such CMT Rate Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity based on the arithmetic
mean of the secondary market offer side prices as of approximately 3:30 P.M.
(New York City time) on the CMT Rate Interest Determination Date of three
Reference Dealers in The City of New York (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for Treasury Notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100 million. If three or four (and
not five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described herein, the CMT Rate will be the CMT Rate in
effect on such CMT Rate Interest Determination Date. If two Treasury Notes with
an original maturity as described in the third preceding sentence, have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the quotes for the CMT Rate Note with the shorter remaining term to maturity
will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated in the applicable Pricing Supplement (or any
other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519). If
no such page is specified in the applicable Pricing Supplement, the Designated
CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be 2 years.
Payments on Amortizing Notes
Amortizing Notes are securities for which payments of principal and
interest are made in equal installments over the life of the security. Unless
otherwise provided in the applicable Pricing Supplement, interest on each
Amortizing Note will be computed upon the basis of a 360-day year of twelve
30-day months. Payments with respect to Amortizing Notes will be applied first
to interest due and payable thereon and then to the reduction of the unpaid
principal amount thereof. A table setting forth repayment information in respect
of each Amortizing Note will be provided to the original purchaser and will be
available, upon request, to subsequent holders.
Book-Entry System
Upon issuance, all Book-Entry Notes having the same Original Issue Date,
original issue discount provisions, if any, Maturity Date, redemption
provisions, if any, repayment provisions, if any, Interest Payment Dates,
Interest Period, Regular Record Dates and, in the case of Fixed Rate Notes,
interest rate or, in the case of Floating Rate Notes, the Base Rate, Initial
Interest Rate, Index Maturity, Interest Reset Dates, Spread or Spread
Multiplier, if any, Minimum Interest Rate, if any, and Maximum Interest Rate, if
any, will be represented by a single Global Security. Each Global Security
representing Book-Entry Notes will be deposited with, or on behalf of, The
Depository Trust Company, New York, New York (the "Depositary") or such other
depositary as is specified in the Pricing Supplement, and registered in the name
of a nominee of the Depositary.
Book-Entry Notes will not be exchangeable for certified Notes. However, if
the Depositary is at any time unwilling, unable or ineligible to continue as a
depositary and a successor depositary is not appointed by the Company within 90
days, the Company will issue individual Notes in definitive form in exchange for
the Book-Entry Notes. In addition, the Company may at any time and in its sole
discretion determine not to have Book-Entry Notes, and, in such event, will
issue individual Notes in definitive form in exchange for the Book-Entry Notes
previously representing all such Notes. In either instance, an owner of a
beneficial interest in a
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Book-Entry Note will be entitled to physical delivery of Notes in definitive
form equal in principal amount to such beneficial interest and to have such
Notes registered in its name. Individual Notes so issued in definitive form will
be issued in denominations of $1,000 and any larger amount that is an integral
multiple of $1,000 and will be issued in registered form only, without coupons.
The Depositary has advised the Company and the Agents as follows: The
Depositary is a limited purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934. The Depositary was created to hold securities
of its participants and to facilitate the clearance and settlement of securities
transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need
for physical movement of securities certificates. The Depositary's participants
include securities brokers and dealers (including the Agents), banks, trust
companies, clearing corporations, and certain other organizations, some of whom
(and/or their representatives) own the Depositary. Access to the Depositary's
book-entry system is also available to others, such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a participant, either directly or indirectly.
A further description of the Depositary's procedures with respect to Global
Securities representing Book-Entry Notes is set forth in the accompanying
Prospectus under "Description of Debt Securities -- Global Securities." The
Depositary has confirmed to the Company, the Agents and the Trustee that it
intends to follow such procedures.
REDEMPTION AND REPURCHASE
The Pricing Supplement relating to each Note will indicate either that such
Note cannot be redeemed prior to maturity or that such Note will be redeemable
at the option of the Company on a date or dates specified prior to maturity at a
price or prices set forth in the applicable Pricing Supplement, together with
accrued interest to the date of redemption. The Company may redeem any of the
Notes that are redeemable and remain outstanding either in whole or from time to
time in part, upon not less than 30 nor more than 60 days' written notice to the
holders of the Notes, addressed to them at their respective addresses appearing
on the Security Register of the Notes. If less than all Notes of a series having
the same terms (except as to principal amount and date of issuance) are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee by such
method as the Trustee shall deem fair and appropriate.
The Company may at any time purchase Notes at any price in the open market
or otherwise. Notes so purchased by the Company may, at the Company's
discretion, be held, resold or surrendered to the Trustee for cancellation.
REPAYMENT AT OPTION OF HOLDER
The Pricing Supplement relating to each Note will indicate either that such
Note cannot be repaid prior to maturity or that the Note will be repayable at
the option of the holder on a date or dates specified prior to maturity at a
price or prices, including premium, if any, set forth in the applicable Pricing
Supplement, together with accrued interest, if any, to the date or dates of
repayment.
In order for a Note which by its terms is repayable prior to its maturity
to be so repaid, the Paying Agent must receive at least 30 days but not more
than 45 days prior to the repayment date (a) appropriate wire instructions and
(b) either (i) the Note with the form entitled "Option to Elect Repayment" on
the reverse of the Note duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange, the
National Association of Securities Dealers Inc., the Depositary (in accordance
with its normal procedures) or a commercial bank or trust company in the United
States setting forth the name of the holder of the Note, the principal amount of
the Note to be repaid, the certificate number or a description of the terms of
the Note, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Note to be repaid with the form entitled
"Option to Elect Repayment" on the reverse of the Note duly completed will be
received by the Paying Agent not later than five Business Days
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after the date of such telegram, telex, facsimile transmission or letter and
such Note and form duly completed must be received by the Paying Agent by such
fifth Business Day. The repayment option may be exercised by the holder of a
Note for less than the entire principal amount of the Note, provided that the
principal amount of the Note remaining outstanding after repayment is an
authorized denomination.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material United States federal income tax
considerations relevant to the purchase, ownership and disposition of a Note and
is based on the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
Regulations (including proposed Regulations and temporary Regulations)
promulgated thereunder, rulings, official pronouncements and judicial decisions,
all as in effect on the date of this Prospectus Supplement and all of which are
subject to change, possibly with retroactive effect. This summary, however,
provides general information only and does not purport to address all of the
United States federal income tax consequences that may be applicable to a holder
of a Note. It does not address all of the tax consequences that may be relevant
to certain types of holders subject to special treatment under the federal
income tax law, such as individual retirement and other tax-deferred accounts,
dealers in securities or currencies, life insurance companies, tax-exempt
organizations, persons holding Notes as a hedge or hedged against currency risk
(or as a position in a straddle for tax purposes) or United States persons (as
defined below) whose functional currency is other than the U.S. dollar. It also
does not discuss the tax consequences to subsequent purchasers of Notes and is
limited to investors who hold the Notes as capital assets (generally property
held for investment). The federal income tax consequences of purchasing, holding
or disposing of a particular Note will depend, in part, on the particular terms
of such Note as set forth in the applicable Pricing Supplement and prospective
purchasers should refer to the applicable Pricing Supplement. Further, persons
considering the purchase of Notes are advised to consult their own tax advisors
concerning the application of the United States federal income tax law to their
particular situations as well as any tax consequences arising under the law of
any state, local or foreign tax jurisdiction.
UNITED STATES PERSONS
For purposes of the following discussion, "United States person" means an
individual who is a citizen or resident of the United States for United States
federal income tax purposes, an estate or trust subject to United States federal
income taxation without regard to the source of its income, or a corporation,
partnership or other entity created or organized in or under the law of the
United States or any state or the District of Columbia. The following discussion
pertains only to a holder of a Note who is a beneficial owner of such Note and
who is a "United States person."
PAYMENTS OF INTEREST ON NOTES THAT ARE NOT ORIGINAL ISSUE DISCOUNT NOTES
Except as discussed below under "Original Issue Discount Notes" and "Short
Term Notes", payments of stated interest on a Note will be taxable to a holder
as ordinary interest income at the time such interest is accrued or received in
accordance with the holder's regular method of tax accounting so long as such
interest represents qualified stated interest (as defined below).
PURCHASE, SALE, EXCHANGE OR RETIREMENT OF NOTES
A holder's tax basis in a Note generally will be the cost of the Note to
such holder increased by any original issue discount, market discount or
acquisition discount (all as defined below) previously included in the holder's
gross income (as described below), and reduced by any amortized premium (as
described below), principal payments received by the holder and payments of
stated interest received by the holder that do not qualify as payments of
qualified stated interest (as defined below).
Upon the sale, exchange or retirement of a Note, a holder generally will
recognize gain or loss equal to the difference between the holder's tax adjusted
basis in the Note and the amount realized on the sale, exchange or retirement
except to the extent such amount is attributable to accrued interest. Any such
gain or loss will be capital gain or loss if the Note was held as a capital
asset, except for gain recognized by a cash
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basis holder representing accrued interest on a short-term note and for gain
attributable to accrued market discount not previously included in income. Any
such capital gain or loss will be long term capital gain or loss, if, at the
time of the sale, exchange or retirement the Note was held for more than one
year. Under current law, long-term capital gains of individuals are, under
certain circumstances, taxed at lower rates than items of ordinary income.
ORIGINAL ISSUE DISCOUNT NOTES
The following summary is a general description of U.S. federal income tax
consequences to holders of Notes issued with original issue discount ("Original
Issue Discount Notes") and is based on the provisions of the Code and on certain
Treasury Regulations promulgated thereunder in February 1994 (the "OID
Regulations"). For purposes of this discussion, Original Issue Discount Notes
includes Notes that are initially sold at a discount from their face amount and
Notes that bear stated interest that does not qualify as qualified stated
interest (described below).
For United States federal income tax purposes, original issue discount is
the excess of the stated redemption price at maturity of each Original Issue
Discount Note over its issue price if such excess is greater than or equal to a
de minimis amount (described below). The issue price of an issue of Original
Issue Discount Notes that are issued for cash will be equal to the first price
at which a substantial amount of such Notes are sold to the public. The stated
redemption price at maturity of an Original Issue Discount Note is the total of
all payments required to be made under the Original Issue Discount Note other
than payments of "qualified stated interest." The term "qualified stated
interest" generally means stated interest that is unconditionally payable in
cash or property (other than debt instruments of the issuer) at least annually
at a single fixed rate or at current values of (i) a single qualified floating
rate, or (ii) a single objective rate. A "qualified floating rate" is any
floating rate where variations in such rate can reasonably be expected to
measure contemporaneous variations in the cost of newly borrowed funds (e.g.,
the Prime Rate or LIBOR). An "objective rate" is a rate that is not itself a
qualified floating rate but which is determined using a single formula that is
fixed throughout the term of the Note and which is based upon one or more
qualified rates or that is based on changes in the price of actively traded
property (or an index of the prices of such property).
Special rules may apply under the OID Regulations in cases where variable
rate debt instruments are subject to interest rate caps, floors or certain other
interest rate adjustment features.
Except as described below with respect to Short-Term Notes (as defined
below), and subject to a de minimis exception, a holder of an Original Issue
Discount Note will be required to include original issue discount in income
before the receipt of cash attributable to such income regardless of such
Holder's regular method of accounting. Under the de minimis exception, such
inclusion is not required if the original issue discount is less than a de
minimis amount (generally 1/4 of 1% of the Note's stated redemption price at
maturity multiplied by the number of complete years to maturity from the issue
date). The OID Regulations provide that the holder will be required to include
any amount excluded under the de minimis rule for original issue discount in
income ratably as stated principal payments on the Notes are made.
The amount of original issue discount includible in income by the initial
holder of an Original Issue Discount Note is the sum of the daily portions of
original issue discount with respect to such Note for each day during the
taxable year on which such holder held such Note ("accrued original issue
discount"). Generally, the daily portion of the original issue discount is
determined by allocating to each day in any "accrual period" a ratable portion
of the original issue discount allocable to such accrual period. "Accrual
periods" may be of any length and may vary in length over the term of the debt
instrument, provided that each accrual period is no longer than one year and
each scheduled payment of principal or interest occurs either on the first day
or on the final day of an accrual period. The "adjusted issue price" of an
Original Issue Discount Note at the beginning of any accrual period generally is
the sum of the issue price of an Original Issue Discount Note plus the accrued
original issue discount for each prior accrual period reduced by any prior
payment on the Original Issue Discount Note other than a payment of qualified
stated interest. For any accrual period, the amount of the original issue
discount allocable to each accrual period is equal to the excess (if any) of (a)
the product of the adjusted issue price of the Original Issue Discount Note at
the beginning of such accrual period and its
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<PAGE> 18
yield to maturity (determined on the basis of compounding at the close of each
accrual period and adjusted for the length of the accrual period) over (b) the
sum of the qualified stated interest, if any, payable on such Original Issue
Discount Note and allocable to such accrual period. Under these rules, a holder
of an Original Issue Discount Note generally will have to include in income
increasingly greater amounts of original issue discount in successive accrual
periods.
If a holder's tax basis in an Original Issue Discount Note immediately
after it is purchased exceeds the adjusted issue price of the Original Issue
Discount Note (the amount of such excess is considered "acquisition premium")
but is not greater than the stated redemption price at maturity of such Original
Issue Discount Note, the amount includible in income in each taxable year as
original issue discount is reduced (but not below zero) by that portion of the
excess properly allocable to such year.
Certain of the Original Issue Discount Notes may be redeemable prior to
maturity at the option of the Company (a "call option") and/or repayable prior
to maturity at the option of the holder (a "put option"). Original Issue
Discount Notes containing either or both of such features may be subject to
rules that differ from the general rules discussed above. Holders intending to
purchase Original Issue Discount Notes with either or both of such features
should carefully examine the applicable Pricing Supplement and should consult
with their own tax advisors with respect to either or both of such features
since the tax consequences with respect to OID will depend, in part, on the
particular terms and the particular features of the purchased Note.
Under the OID Regulations, holders may elect, subject to certain
limitations, to include all interest on a Note using the constant yield method.
For this purpose, interest includes stated interest, acquisition discount,
original issue discount, de minimis original issue discount, market discount, de
minimis market discount, and unstated interest, as adjusted by any amortizable
bond premium or acquisition premium. Special rules apply to elections made with
respect to Notes with amortizable bond premium or market discount and holders
considering such an election should consult their own tax advisor. The election
cannot be revoked without the approval of the Internal Revenue Service.
MARKET DISCOUNT
If a holder purchases a Note other than an Original Issue Discount Note for
an amount that is less than its stated redemption price at maturity or, in the
case of an Original Issue Discount Note, its "revised issue price" (defined
below) as of the purchase date, the amount of the difference will be treated as
"market discount", unless such difference is less than a specified de minimis
amount. The "revised issue price" of an Original Issue Discount Note generally
equals its issue price, plus the aggregate amount of original issue discount,
includible (without regard to any reduction for acquisition premium, as
discussed above) in gross income by all previous holders of the Original Issue
Discount Note, less any cash payments (other than qualified stated interest)
made to all previous holders of such Original Issue Discount Note.
Under the market discount rules of the Code, a holder will be required to
treat any partial principal payment (or, in the case of an Original Issue
Discount Note, any payment that does not constitute qualified stated interest)
or any gain realized on the sale, exchange or retirement of a Note as ordinary
income to the extent of the accrued market discount which has not previously
been included in income at the time of such payment or disposition. Further, a
disposition of a Note by gift (and in certain other circumstances) could result
in the recognition of market discount income, computed as if such Note had been
sold at its then fair market value. In addition, a Holder who purchases a Note
with market discount may be required to defer the deduction of a portion of the
interest paid or accrued on any indebtedness incurred or maintained to purchase
or carry such Note until the maturity of the Note or its earlier disposition in
a taxable transaction.
Market discount is considered to accrue ratably during the period from the
date of acquisition to the maturity date of a Note, unless the holder elects to
accrue market discount under the rules applicable to original issue discount. A
holder may elect to include market discount in income currently as it accrues,
in which case the rules described above regarding the deferral of interest
deductions will not apply.
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<PAGE> 19
AMORTIZABLE BOND PREMIUM
Generally, if a holder's tax basis in a Note exceeds the stated redemption
price at maturity of such Note, such excess may constitute amortizable bond
premium that the holder may elect to amortize as an offset to interest income on
the Note under the constant interest rate method over the period from the Note's
acquisition date to its maturity date, with a corresponding decrease in the tax
basis of the holder in the Note. Under certain circumstances, amortizable bond
premium may be determined by reference to an early call date.
SHORT-TERM NOTES
In general, an individual or other cash method holder of a Note that
matures one year or less from the date of its issuance (a "Short-Term Note") is
not required to accrue stated interest or original issue discount on such Note
unless it has elected to do so. Holders who report income under the accrual
method, however, and certain other holders, including banks, dealers in
securities and electing holders, are required to accrue "acquisition discount"
(which is generally equal to original issue discount in the absence of an
election by the holder) and any stated interest (to the extent not taken into
account in determining the amount of acquisition discount) on such Note. In the
case of a holder who is not required and does not elect to accrue acquisition
discount and interest on a Short-Term Note, any gain realized on the sale,
exchange or retirement of such Short-Term Note will be ordinary income to the
extent of the acquisition discount and stated interest accrued through the date
of sale, exchange or retirement. Such a holder will be required to defer, until
such Short-Term Note is sold or otherwise disposed of, the deduction of a
portion of the interest expense on any indebtedness incurred or continued to
purchase or carry such Short-Term Note. Acquisition discount accrues on a
straight-line basis unless an election is made to use the constant yield method
(based on daily compounding).
The market discount rules will not apply to a Short-Term Note.
NON-UNITED STATES PERSONS
Subject to the discussion of backup withholding below, payments of
principal and interest (including original issue discount) by the Company or its
agent (in its capacity as such) to any holder that is a beneficial owner of a
Note, but that is not a United States person and is not engaged in a trade or
business in the United States, will not be subject to United States federal
withholding tax provided (i) such holder does not actually or constructively own
10% or more of the total combined voting power of all classes of stock of the
Company entitled to vote, (ii) such holder is not a controlled foreign
corporation for United States tax purposes that is related to the Company
through stock ownership, and (iii) either (A) the beneficial owner of the Note
certifies to the Company or its agent, under penalties of perjury, that it is
not a United States person and provides its name and address or (B) a securities
clearing organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution") certifies to the Company or its agent, under penalties of perjury,
that the certification described in clause (A) hereof has been received from the
beneficial owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof.
If a holder of a Note that is not a United States person is engaged in a
trade or business in the United States and if interest (including original issue
discount) gain or income on the Note is effectively connected with the conduct
of such trade or business, such holder, although exempt from United States
withholding tax discussed in the preceding paragraph by reason of delivery of a
properly prepared and completed Form 4224, will be subject to United States
federal income tax on such interest (including original issue discount) gain or
income less any allowable deductions, at the rates generally applicable to U.S.
persons (plus, in the case of corporations, possible "branch profits" tax).
Subject to the discussion of "backup" withholding below, any capital gain
realized upon the sale, exchange or retirement of a Note by a holder who is not
a United States person will not be subject to United States federal income or
withholding taxes unless (i) such gain is effectively connected with a United
States trade or business of the holder (in which case such gain would be taxable
as described in the immediately
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preceding paragraph), or (ii) in the case of an individual, such holder is
present in the United States for 183 days or more in the taxable year of the
retirement or disposition and certain other conditions are met (in which case
such gain generally would be subject to tax on a gross basis at a 30% rate).
BACKUP WITHHOLDING AND INFORMATION REPORTING
The "backup" withholding and information reporting requirements may apply
to payments on a Note and to certain payments of proceeds of the sale or
retirement of a Note. The Company, its agent, a broker, or any paying agent, as
the case may be, will be required to withhold tax from any payment that is
subject to backup withholding equal to 31% of such payment if the holder fails
to furnish his taxpayer identification number (social security number or
employer identification number), to certify that such holder is not subject to
backup withholding, or to otherwise comply with the applicable requirements of
the backup withholding rules. Certain holders (including, among others,
corporations and nonresident aliens who provide certification as to their
foreign status) are not subject to the backup withholding and reporting
requirements.
Any amounts withheld under the backup withholding rules from a payment to a
holder may be claimed as a credit against such holder's United States federal
income tax liability.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES,
INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS
AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
PLAN OF DISTRIBUTION
The Notes are being offered on a continuous basis by the Company through
each of the Agents, each of which has agreed to use its reasonable efforts to
solicit offers to purchase Notes. For any Note with a maturity from nine months
to thirty years from its date of issue, the Company will pay each Agent a
commission of .125% to .750% of the principal amount of each Note sold through
such Agent, depending upon the maturity of the Note. The commission applicable
to any Note with a maturity of greater than thirty years from its date of issue
will be determined at the time of sale. The Company may sell Notes to any of the
Agents, as principal, at or above par or at a discount for resale to investors
or other purchasers at varying prices related to prevailing market prices at the
time of resale, to be determined by such Agent. The Company may also sell Notes
to an Agent, as principal, at a discount for resale to investors, other dealers
or other purchasers at varying prices related to prevailing market prices at the
time of resale or, if set forth in the applicable Pricing Supplement, at a fixed
offering price, as determined by such Agent. Unless otherwise indicated in the
applicable Pricing Supplement, any Note sold to an Agent as principal will be
purchased by such Agent at a price equal to 100% of the principal amount thereof
less a percentage equal to the commission applicable to an agency sale of a Note
of identical maturity. The Company may sell Notes directly to investors on its
own behalf. In the case of sales made directly by the Company, no commission
will be payable. The Company has agreed to reimburse the Agents for certain
expenses. Notes also may be offered through other agents on the same terms and
conditions as those described above for offerings through the Agents. In such
cases, the names of the other agents will be set forth in the Pricing
Supplement.
The Company will have the sole right to accept offers to purchase Notes and
may reject any proposed purchase of Notes in whole or in part whether placed
directly with the Company or through an Agent. Each Agent will have the right,
in its discretion reasonably exercised, to reject any offer to purchase Notes
received by it in whole or in part.
In addition to offering Notes through the Agents as described herein, the
Company may sell other Securities. Under certain circumstances, the sale of any
such Securities may reduce correspondingly the maximum aggregate amount of Notes
that may be offered by this Prospectus Supplement.
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No Note will have an established trading market when issued. The Notes will
not be listed on any securities exchange. Each Agent may make a market in the
Notes, but such Agent is not obligated to do so and may discontinue any
market-making at any time without notice. There can be no assurance that the
Notes offered hereby will be sold or that there will be a secondary market for
any of the Notes.
The Company has agreed to indemnify each Agent against certain civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribute to payments such Agent may be required to make in respect thereof.
Each Agent may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933.
Each Agent may sell Notes it has purchased from the Company as principal to
other dealers for resale to investors and other purchasers, and may allow any
portion of the discount received in connection with such purchase from the
Company to such dealers. After the initial public offering of Notes, the public
offering price (in the case of Notes to be resold at a fixed public offering
price), the concession and the discount may be changed.
The Agents and certain of their affiliates engage in transactions with and
perform services for the Company in the ordinary course of business.
LEGAL OPINIONS
The legality of the Notes offered hereby has been passed upon for the
Company by L. Gene Lemon, Esq., Vice President and General Counsel of the
Company, and for the Agents by Shearman & Sterling, New York, New York. Shearman
& Sterling has advised the Company with respect to certain tax matters relating
to the Notes as set forth under "Certain United States Federal Income Tax
Consequences."
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION DATED , 1994
PROSPECTUS
THE DIAL CORP
DEBT SECURITIES AND DEBT WARRANTS
PREFERRED STOCK AND DEPOSITARY SHARES
COMMON STOCK AND COMMON STOCK WARRANTS
The Dial Corp ("Company" or "Dial") may offer and sell from time to time
under this Prospectus, together or separately, (i) unsecured debt securities
(the "Debt Securities"), which may be either senior (the "Senior Debt
Securities") or subordinated (the "Subordinated Debt Securities"), (ii) warrants
to purchase Debt Securities (the "Debt Warrants"), (iii) shares of its preferred
stock (the "Preferred Stock"), (iv) depositary shares (the "Depositary Shares")
representing interests in Preferred Stock, (v) shares of its Common Stock (the
"Common Stock") and (vi) warrants to purchase Common Stock (the "Common
Warrants"), all on terms to be determined at the time of offering. The Debt
Securities and Preferred Stock may be convertible into or exchangeable for
Common Stock or other securities as herein described.
The Debt Warrants and Common Warrants are collectively called the
"Warrants." The Debt Securities, Warrants, Preferred Stock, Depositary Shares or
Common Stock, or a combination thereof, proposed to be sold pursuant to this
Prospectus and the accompanying Prospectus Supplement are referred to as the
"Offered Securities," and the Offered Securities, together with any Debt
Securities issuable upon exercise of Debt Warrants, Common Stock issuable upon
exercise of Common Warrants, Preferred Stock underlying Depositary Shares or
Common Stock or other securities issuable upon conversion or exchange of any
Debt Securities or Preferred Stock, are referred to as the "Securities."
Securities (including Securities issuable upon conversion or exchange or upon
exercise of Warrants) with an aggregate public offering price of up to
$500,000,000 (or the equivalent thereof if any of the Securities are denominated
in a currency, currency unit or composite currency ("Currency") other than the
U.S. dollar) may be issued under this Prospectus.
The Prospectus Supplement accompanying this Prospectus sets forth, with
respect to each series or issue of Securities for which this Prospectus and the
Prospectus Supplement are being delivered: (i) the terms of any Debt Securities
offered, including, where applicable, their title, ranking, aggregate principal
amount, maturity, rate of any interest (or manner of calculation and time of
payment thereof), any redemption or repayment terms, the Currency or Currencies
in which such Debt Securities will be denominated or payable, any index, formula
or other method pursuant to which principal, premium or interest may be
determined, any terms for the conversion or exchange thereof and the form of
such Debt Securities (which may be in registered, bearer or global form); (ii)
the terms of any Warrants offered, including, where applicable, the exercise
price, detachability, expiration date and other terms; (iii) the terms of any
Preferred Stock offered, including the specific designations and dividend,
redemption, voting and other rights not described in this Prospectus and any
terms for the conversion or exchange thereof; (iv) the terms of any Depositary
Shares offered; (v) the terms of any Common Stock offered; and (vi) any initial
public offering price, the purchase price and net proceeds to the Company and
the other specific terms of the offering of the Offered Securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Offered Securities may be offered through underwriters, agents or
dealers. If underwriters are used, it is expected that the managing underwriters
will include Salomon Brothers Inc. If an underwriter, agent or dealer is
involved in the offering of any Offered Securities, the underwriter's discount,
agent's commission or dealer's purchase price will be set forth in, or may be
calculated from, the Prospectus Supplement. See "Plan of Distribution."
The date of this Prospectus is , 1994.
<PAGE> 23
IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH OFFERING MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE OFFERED SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission,
which can be inspected and copied at the public reference facilities maintained
by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Regional Offices of the Commission at Seven World Trade Center, New York, New
York 10048, Northwestern Atrium Center, 500 Madison Street (Suite 1400),
Chicago, Illinois 60661-2511 and 5757 Wilshire Boulevard, Los Angeles,
California 90036-3648. Copies of such material can be obtained at prescribed
rates by writing to the Securities and Exchange Commission, Public Reference
Section, Washington, D.C. 20549. The Common Stock of the Company is listed on
the New York Stock Exchange and the Pacific Stock Exchange and reports, proxy
statements and other information about the Company can also be inspected at the
offices of The New York Stock Exchange, 20 Broad Street, New York, New York
10005 and The Pacific Stock Exchange, 115 Sansome Street, Suite 1104, San
Francisco, California 94104. This Prospectus does not contain all the
information set forth in the related registration statement and exhibits thereto
which the Company has filed with the Securities and Exchange Commission under
the Securities Act of 1933 and to which reference is hereby made.
INCORPORATION BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated by reference in this Prospectus:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1993;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1994; and
(c) The description of the Company's Common Stock and the Rights to
purchase Common Stock contained in the Company's registration statement on
Form 8-B, dated February 24, 1992, under Section 12 of the Securities
Exchange Act of 1934.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this Prospectus
and prior to the termination of the offering of the Securities shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof from
the respective dates 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 Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein or in
any Prospectus Supplement modifies or supersedes such statement. Any statement
so modified or so superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner of Securities, to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any or all of the documents
that have been incorporated by reference in this Prospectus (not including
exhibits to such documents unless such exhibits are specifically incorporated by
reference into such documents). Requests should be directed to The Dial Corp,
Dial Tower, Phoenix, Arizona 85077; Attention: Treasury Department; telephone
number (602) 207-4000.
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<PAGE> 24
THE COMPANY
The Company conducts a consumer products and services business focused on
North American markets producing annual revenues in excess of $3 billion.
Dial's Consumer Products segment operates through four divisions, as
follows:
Skin Care, which manufactures and markets Dial, Tone, Spirit, Pure &
Natural and Liquid Dial soaps, and other soap and skin care products;
Laundry, which manufactures and markets Purex and Purex Ultra dry
detergent, Purex heavy duty liquid detergent, Trend, Purex Toss 'n Soft and
other laundry products;
Household, which manufactures and markets Renuzit air fresheners,
Brillo scouring pads, Sno Bol and Sno Drops toilet bowl cleaners, Parsons
ammonia, Bruce floor care products and other household items; and
Food, which processes and markets Armour Star chili, beef stew, corned
beef hash and Vienna sausage, Treet luncheon meat and other shelf-stable
canned foods, Lunch Bucket microwaveable meals and other food products.
Dial's Services business operates in three principal business segments
through subsidiary corporations of Dial, as follows:
Airline Catering and Other Food Services, which engages in airline
catering operations, providing in-flight meals to more than 60 domestic and
international airlines, and operates foodservice facilities ranging from
cafeterias in manufacturing plants to corporate executive dining rooms to
the food and beverage facilities of the America West Arena in Phoenix,
Arizona;
Convention Services, which provides exhibit design and construction
and exhibition preparation, installation, electrical, transportation and
management services to major trade shows, manufacturers, museums and
exhibit halls and other customers; and
Travel and Leisure and Payment Services, which engages in airplane
fueling and ground handling, cruise line and hotel/resort operations,
recreation and travel services, Canadian intercity bus transportation, and
operation of duty-free shops on cruise ships and at international airports,
and offers money orders, official checks and negotiable instrument clearing
services through a national network of approximately 43,000 retail agents,
mid-size bank customers and over 4,500 credit unions in the United States
and Puerto Rico.
Dial subsidiaries operate service or production facilities and maintain
sales and service offices in the United States, Canada and Mexico. The Company
also conducts business in other foreign countries.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges and the ratio of earnings to fixed
charges and preferred stock dividends represent the historical ratios of the
Company and are calculated on a total enterprise basis. The ratio of earnings to
fixed charges is computed by dividing the sum of Pretax Income from Continuing
Operations and Minority Interest and fixed charges (excluding capitalized
interest) by fixed charges. The ratio of earnings to fixed charges and preferred
stock dividends is computed by dividing the sum of Pretax Income from Continuing
Operations and Minority Interest and fixed charges (excluding capitalized
interest) by the sum of fixed charges and preferred stock dividends. Fixed
charges for both ratios represent interest (including capitalized interest),
amortization of debt discount and expense and that portion of rental expense
which is deemed to be representative of interest. Preferred stock dividends are
increased to an amount representing the pre-tax earnings which would be required
to cover such dividend requirements.
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<PAGE> 25
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED MARCH FISCAL YEAR
31, ENDED DECEMBER 31,
----------- --------------------------------
1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges............ 2.16 1.75 2.91 2.22 1.74 2.24 1.70
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends................... 2.12 1.72 2.85 2.18 1.69 2.20 1.67
</TABLE>
USE OF PROCEEDS
Except as otherwise specified in the accompanying Prospectus Supplement,
the net proceeds from the sale of the Securities offered hereby will be added to
the working capital of the Company, which combined with internally generated
funds, possible future borrowings, and existing cash and marketable securities
may be used for capital expenditures, possible future acquisitions, repurchase
of the Company's outstanding capital stock, refinancing of outstanding
indebtedness, increased working capital requirements, and other corporate
purposes.
DESCRIPTION OF DEBT SECURITIES
The Company may issue its Debt Securities, either separately or together
with other Offered Securities. The Senior Debt Securities will be issued under
an Indenture, dated as of April 1, 1993, as supplemented and amended from time
to time (hereinafter called the "Senior Indenture"), between the Company and The
Chase Manhattan Bank, N.A., as Trustee (the "Senior Trustee"). The Subordinated
Securities are to be issued under an Indenture, dated as of June 1, 1994, as
supplemented and amended from time to time (the "Subordinated Indenture"),
between the Company and Continental Bank, National Association, as Trustee (the
"Subordinated Trustee"). Copies of the Senior Indenture and the Subordinated
Indenture have been filed with the Commission as exhibits to the Registration
Statement of which this Prospectus is a part. The Senior Indenture and the
Subordinated Indenture are sometimes referred to collectively herein as the
"Indentures." The term "Trustee" as used herein refers to either the Senior
Trustee or the Subordinated Trustee, as appropriate. The following sets forth
certain general terms and provisions of the Debt Securities offered hereby. The
following statements do not purport to be complete and are subject to the
detailed provisions of the Indenture, to which reference is hereby made,
including the definition of certain terms used herein without definition. The
Indentures are subject to and governed by the Trust Indenture Act of 1939, as
amended (the "TIA"). Parenthetical references below are to the Indentures.
GENERAL
The Senior Debt Securities will rank equally with all other unsecured and
unsubordinated indebtedness of the Company which is not accorded a priority
under applicable law. The Subordinated Debt Securities will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness of the
Company as described under "Subordination." The Debt Securities will be
unsecured general obligations of the Company.
Each Indenture provides that any Debt Securities proposed to be sold
pursuant to this Prospectus and the accompanying Prospectus Supplement ("Offered
Debt Securities") and any Debt Securities issuable upon the exercise of Debt
Warrants or upon conversion or exchange of other Offered Securities ("Underlying
Debt Securities"), as well as other unsecured debt securities of the Company,
may be issued under such Indenture in one or more series, in each case as
authorized from time to time by the Company. The aggregate principal amount of
Debt Securities which may be issued under each Indenture is not limited. The
particular terms of the Offered Debt Securities and any Underlying Debt
Securities, any modifications of or additions to the general terms of the Debt
Securities as described herein that may be applicable in the case of the Offered
Debt Securities or Underlying Debt Securities and any applicable federal income
tax considerations are described in the Prospectus Supplement. Accordingly, for
a description of the terms of any Offered Debt Securities and Underlying Debt
Securities reference must be made to both the Prospectus Supplement relating
thereto and the description of Debt Securities set forth in this Prospectus.
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<PAGE> 26
Reference is made to the Prospectus Supplement together with any applicable
pricing supplement thereto relating to the Offered Debt Securities, the
Underlying Debt Securities, or both, as the case may be, for the following terms
thereof:
(1) the title of the Debt Securities and whether such Debt Securities
will be Senior Debt Securities or Subordinated Debt Securities;
(2) the aggregate principal amount of such Debt Securities and any
limit upon the aggregate principal amount of the Debt Securities of such
series;
(3) the date or dates on which the principal of the Debt Securities
shall be payable;
(4) the rate or rates (which may be fixed or variable) at which the
Debt Securities shall bear interest, or the method by which such rate or
rates shall be determined;
(5) the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the dates on which
such interest shall be payable and any record dates therefor;
(6) the place or places where the principal of, premium, if any, and
interest on the Debt Securities shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Debt Securities may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, purchase or
repay the Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof, and the period or periods
within which, the price or prices at which and the terms and conditions
upon which the Debt Securities shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(9) if other than the principal amount thereof, the percentage of the
principal amount of the Debt Securities payable upon declaration of
acceleration of the maturity of the Debt Securities;
(10) whether the Debt Securities are to be issued in whole or in part
in global form ("Global Securities") and, if so, the identity of the
Depositary for such Global Securities, and the terms and conditions, if
any, upon which interests in such Global Securities may be exchanged, in
whole or in part, for the individual Securities represented thereby;
(11) any deletions from, modifications of, or additions to the events
of default or covenants of the Company with respect to any of the Debt
Securities;
(12) if such Debt Securities will be issuable upon the conversion of
other Securities or upon the exercise of Debt Warrants, the time, manner,
and place for such Debt Securities to be authenticated and delivered;
(13) whether such Subordinated Debt Securities will be convertible
into or exchangeable for Common Stock or other Securities of the Company
and, if so, the terms and conditions upon which such Subordinated Debt
Securities will be so convertible or exchangeable; and
(14) any other terms of the Debt Securities, none of which shall be
inconsistent with the provisions of the applicable Indenture (Section
2.02).
The Company may authorize the issuance and provide for the terms of a
series of Debt Securities pursuant to a resolution of its Board of Directors or
any duly authorized committee thereof or pursuant to one or more supplemental
indentures.
The Debt Securities may be issued in registered form. Debt Securities of a
series may be issued in whole or in part in the form of one or more Global
Securities, as described below under "Global Securities." Unless the applicable
Prospectus Supplement relating thereto specifies otherwise, Debt Securities will
be issued only in denominations of $1,000 or any integral multiple thereof
(Section 2.01). One or more Global Securities will be issued in a denomination
or denominations equal to the aggregate principal amount of Outstanding
Securities of the series to be represented by such Global Security or Securities
(Section 3.01).
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<PAGE> 27
Debt Securities (other than a Global Security) may be presented for
exchange and registration of transfer (with the form of transfer endorsed
thereon duly executed) at the office of the Company designated for such purpose
or at the office of any transfer agent or at the office of any Security
Registrar, without service charge and upon payment of any taxes and other
governmental charges as described in the Indenture. Debt Securities may
initially be presented for registration of transfer or exchange at the Company's
principal business office, Dial Tower, Phoenix, Arizona 85077 and at the
Principal Office of the Trustee under the applicable Indenture. Debt Securities
(other than a Global Security) in the several denominations will be
interchangeable without service charge, but the Company may require payment to
cover taxes or other governmental charges. The Trustee under the applicable
Indenture initially will act as authenticating agent (Sections 1.02, 2.05 and
5.02).
CONVERSION AND EXCHANGE
If any Debt Securities will, by their terms, be convertible into or
exchangeable for Common Stock or other Securities, the Prospectus Supplement
relating thereto will set forth the terms and conditions of such conversion or
exchange, including the conversion price or exchange ratio (or the method of
calculating the same), the conversion or exchange period (or the method of
determining the same), whether conversion or exchange will be mandatory or at
the option of the holder or the Company, provisions for adjustment of the
conversion price or the exchange ratio and provisions affecting conversion or
exchange in the event of the redemption of such Debt Securities. Such terms may
also include provision under which the number of shares of Common Stock or the
number of other Securities to be received by the holders of such Debt Securities
upon such conversion or exchange would be calculated according to the market
price of the Common Stock or such other Securities as of a time stated in the
Prospectus Supplement.
PAYMENT AND PAYING AGENTS
Payment of principal of and premium, if any, on Debt Securities (other than
a Global Security) will be made against surrender of such Debt Securities at the
Principal Office of the Trustee under the applicable Indenture in The City of
New York. Payment of any installment of interest on Debt Securities will be made
to the person in whose name such Debt Security is registered at the close of
business on the record date for such interest. Unless otherwise indicated in the
Prospectus Supplement, payments of such interest will be made at the Principal
Office of the Trustee under the applicable Indenture in The City of New York and
at any other office or agency maintained by the Company for such purposes, or,
at the option of the Company, by check mailed by first class mail to registered
holders of a Debt Security at such holder's registered address (Sections 2.01
and 5.02).
All moneys paid by the Company to a paying agent for the payment of
principal of or premium, if any, or interest on any Debt Security that remain
unclaimed at the end of three years after the date of the maturity of the Debt
Securities of such series or the date fixed for the redemption or repayment of
all the Debt Securities of such series at the time outstanding, as the case may
be, will be repaid to the Company and the holder of such Debt Security entitled
to receive such payment will thereafter look only to the Company for payment
therefor (Section 11.03).
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary identified in the Prospectus Supplement relating to such
series. Global Debt Securities may be issued in either temporary or permanent
form. Unless and until it is exchanged for Debt Securities in definitive form, a
Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee of
such successor (Section 2.05).
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<PAGE> 28
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply to
any depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit the accounts of persons held with it with
the respective principal amounts of the Debt Securities represented by such
Global Security. Such accounts shall be designated by the underwriters or agents
with respect to such Debt Securities or by the Company if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in a Global Security will be limited to persons that have accounts with the
Depositary for such Global Security or its nominee ("participants") or persons
that may hold interests through participants. Ownership of beneficial interests
in such Global Security will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the Depositary for such
Global Security or by participants or persons that hold through participants.
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in a Global
Security.
So long as the Depositary for a Global Security, or its nominee, is the
owner of such Global Security, such Depositary or such nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture
governing such Debt Securities. Except as set forth below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debt Securities of
such series in definitive form and will not be considered the owners or holders
thereof under the Indenture governing such Debt Securities.
Payments of principal of, premium, if any, and interest, if any, on, Debt
Securities registered in the name of or held by a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner or the holder of the Global Security representing such Debt Securities.
None of the Company, the Trustee for such Debt Securities, any paying agent or
the Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security for such Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company expects that the Depositary for Debt Securities of a series,
upon receipt of any payment of principal, premium, if any, or interest, if any,
in respect of a permanent Global Security, will credit immediately participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of such Depositary. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with the securities held for the
accounts of customers in bearer form or registered in "street name," and will be
the responsibility of such participants. Receipt by owners of beneficial
interests in a temporary Global Security of payments in respect of such
temporary Global Security may be subject to restrictions. Any such restrictions
will be described in the Prospectus Supplement relating thereto.
If a Depositary for Debt Securities of a series is at any time unwilling or
unable to continue as Depositary and a successor depositary is not appointed by
the Company within ninety days, the Company will issue Debt Securities of such
series in definitive form in exchange for the Global Security or Debt Securities
representing such Debt Securities of such series. In addition, the Company may
at any time and in its sole discretion determine not to have any Debt Securities
of a series represented by one or more Global Securities and, in such event,
will issue Debt Securities of such series in definitive form in exchange for the
Global Security or Securities representing Debt Securities. Further, if the
Company so specifies with respect to the Debt Securities of a series, each
Person specified by the Depositary of the Global Security representing Debt
Securities of such series may, on terms acceptable to the Company and the
Depositary for such Global Security, receive Debt Securities of such series in
definitive form. In any such instance, each Person so specified by the
Depositary of the Global Security will be entitled to physical delivery in
definitive form of
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<PAGE> 29
Debt Securities of the series represented by such Global Security equal in
principal amount to such Person's beneficial interest in the Global Security
(Sections 2.05, 2.08 and 3.01).
CERTAIN DEFINITIONS
The following terms are defined substantially as follows in Section 1.02 of
the Indentures and are used herein as so defined. For the purposes of the
following terms, all items shall be determined in accordance with generally
accepted accounting principles, unless otherwise indicated.
"Consolidated Net Assets" means the total of all assets reflected on a
consolidated balance sheet of the Company and its consolidated Subsidiaries,
prepared in accordance with generally accepted accounting procedures, at their
net book values (after deducting related depreciation, depletion, amortization
and all other valuation reserves which, in accordance with generally accepted
accounting principles, should be set aside in connection with the business
conducted), less the aggregate of the current liabilities of the Company and its
consolidated Subsidiaries reflected on such balance sheet. For purposes of this
definition, "current liabilities" include all indebtedness for money borrowed,
incurred, issued, assumed or guaranteed by the Company and its consolidated
Subsidiaries, and other payables and accruals, in each case payable on demand or
due within one year of the date of determination of Consolidated Net Assets, but
shall exclude any portion of long-term debt maturing within one year of the date
of such determination, all as reflected on such consolidated balance sheet of
the Company and its consolidated Subsidiaries prepared in accordance with
generally accepted accounting principles; provided, however, that for purposes
hereof commercial paper and short-term notes supported by long-term lines of
credit shall not be considered as current liabilities.
"Funded Debt" means Indebtedness of the Company or a Restricted Subsidiary
maturing by its terms more than one year after its creation and indebtedness
classified as long-term debt under generally accepted accounting principles, in
each case ranking at least pari passu with the Senior Debt Securities.
"Indebtedness" means (a) any liability (i) for borrowed money, or (ii)
evidenced by a bond, note, debenture or similar instrument (including a purchase
money obligation) given in connection with the acquisition of any businesses,
properties or assets of any kind (other than a trade payable or a current
liability arising in the ordinary course of business), or (iii) for the payment
of money relating to a capitalized lease; (b) all obligations to purchase,
redeem, retire, defease or otherwise make any payment in respect of any capital
stock of or other ownership or profit interest or any warrants, rights or
options to acquire such capital stock, valued, in the case of redeemable stock,
at the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends; (c) a guarantee of any liability described above;
and (d) any amendment, supplement, modification, deferral, renewal, extension or
refunding of such liabilities. For purposes of determining any particular amount
of Indebtedness under this definition, guarantees of (or obligations with
respect to letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Lien" means any mortgage, lien, charge, claim, security interest, pledge,
hypothecation, right of another under any conditional sale or other title
retention agreement or any other encumbrance affecting title to property,
including, but not limited to, any lease under a sale and leaseback arrangement.
"Outstanding" means all Debt Securities authenticated and delivered,
except:
(a) Debt Securities or portions thereof for which (i) funds or a
sufficient amount of direct obligations of the United States of America
have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or, if the Company is acting as the paying agent,
have been set aside and segregated in trust by the Company, (ii) in the
case of redemption, notice of redemption has been duly given and (iii) in
the case of a repayment at the option of the holder of a Debt Security,
wire instructions have been duly given to the paying agent and notice and
applicable documentation of the exercise of the option for such repayment
has been duly given to the Company;
(b) Debt Securities which have been cancelled or surrendered to the
Trustee for cancellation; and
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<PAGE> 30
(c) Debt Securities in lieu of or in substitution for which other Debt
Securities have been authenticated and delivered;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver, Debt Securities owned by
the Company or any other obligor upon the Debt Securities or any affiliate of
the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debt Securities which the Trustee knows to be so owned
shall be so disregarded. Debt Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Debt Securities and that the pledgee is not the Company or any other obligor
upon the Debt Securities or any affiliate of the Company or of such other
obligor.
"Sale and Leaseback Transaction" means any arrangement with any person
pursuant to which the Company or any Restricted Subsidiary leases any property
that has been or is to be sold or transferred by the Company or the Restricted
Subsidiary to such person, other than (i) leases with a remaining term,
including renewals at the option of the lessee, of not more than three years,
(ii) leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, (iii) leases of property executed by the time of, or
within 12 months after the latest of, the acquisition, the completion of
construction or improvement, or the commencement of commercial operation of the
property, and (iv) arrangements pursuant to any provision of law with an effect
similar to the former Section 168(f)(8) of the Internal Revenue Code of 1954.
"Subsidiary" means any corporation a majority of the Voting Stock of which
is owned, directly or indirectly, by the Company or by one or more Subsidiaries
or by the Company and one or more Subsidiaries. "Restricted Subsidiary" is any
Subsidiary a majority of the Voting Stock of which is owned, directly, by the
Company or by one or more Restricted Subsidiaries or by the Company and one or
more Restricted Subsidiaries, except (a) a Subsidiary which does not regularly
maintain a majority of its fixed assets within the United States or (b) which is
engaged primarily in the finance business, including, without limitation,
financing the operation of, or the purchase of products which are products of,
or incorporate products of, the Company and/or its Subsidiaries, unless in
either case the Subsidiary is designated a Restricted Subsidiary by resolution
of the Board of Directors of the Company. "Unrestricted Subsidiary" means any
Subsidiary other than a Restricted Subsidiary.
"Value" means, with respect to a Sale and Leaseback Transaction, an amount
equal to the present value of the lease payments with respect to the term of the
lease remaining on the date as of which the amount is being determined, without
regard to any renewal or extension options contained in the lease, discounted
using the interest rate inherent in the relevant lease.
"Voting Stock" means stock of any class or classes (however designated)
having ordinary voting power for the election of a majority of the members of
the board of directors (or any governing body) of such corporation, other than
stock having such power only by reason of the happening of a contingency.
LIMITATION ON LIENS
The Senior Indenture provides that the Company will not, and will not
permit any Restricted Subsidiary to, create, assume, incur or suffer to be
created, assumed or incurred or to exist any Lien upon any of the properties of
any character of the Company or any Restricted Subsidiary without making
effective provision for securing the Securities then outstanding equally and
ratably with (or prior to) any other obligation or indebtedness so secured,
other than: (i) any Lien existing on the date the Senior Debt Securities are
issued; (ii) any Lien on property owned or leased by a corporation at the time
it became a Restricted Subsidiary; (iii) any Lien on property at the time of its
acquisition by the Company or a Restricted Subsidiary; (iv) any Lien securing
any Indebtedness that was incurred prior to, at the time of, or within 12 months
after the acquisition of property for the purpose of financing all or any part
of the purchase price of such property and any Lien to the extent that it
secures Indebtedness which is in excess of such purchase price and for which
recourse for payment is limited to such property; (v) any Lien securing any
Indebtedness that was incurred
9
<PAGE> 31
prior to, at the time of, or within 12 months after the completion of the
construction and commencement of commercial operation, alteration, repair or
improvement of property for the purpose of financing all or any part of the cost
of such property and any Lien to the extent that it secures Indebtedness which
is in excess of such cost and for which recourse for payment is limited to such
property; (vi) any Lien securing Indebtedness of a Restricted Subsidiary owing
to the Company or to another Restricted Subsidiary; (vii) any Lien in favor of
the United States of America or any State thereof or any other country, or any
agency, instrumentality or political subdivision of any of the foregoing, to
secure partial progress, advance or other payments or performance pursuant to
the provisions of any contract or statute, or any Liens securing industrial
development, pollution control, or similar revenue bonds; (viii) any extension,
renewal or replacement (or successive extensions, renewals or replacements) in
whole or in part of any Lien referred to in (i) through (vii) above, so long as
the principal amount of the Indebtedness secured by such extension, renewal or
replacement does not exceed the principal amount of Indebtedness secured at the
time of such extension, renewal or replacement (except that, where an additional
principal amount of Indebtedness is incurred to provide funds for the completion
of a specific project, the additional principal amount, and any related
financing costs, may be secured by the Lien as well) and the Lien is limited to
the same property subject to the Lien so extended, renewed or replaced (plus
improvements on the property); and (ix) any Liens not permitted by clauses (i)
through (viii) above which, together with the aggregate Value of existing Sale
and Leaseback Transactions which would be subject to the restrictions set forth
below, do not exceed 10% of Consolidated Net Assets at the time any such Lien is
incurred (Section 5.04).
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Senior Indenture provides that the Company shall not enter into any
Sale and Leaseback Transaction, nor permit any Restricted Subsidiary to enter
into such transaction, unless either: (i) the Company or such Restricted
Subsidiary would be entitled to incur Indebtedness, in a principal amount at
least equal to the Value of such Sale and Leaseback Transaction, which is
secured by Liens on the property to be leased (without equally and ratably
securing the outstanding Securities) because such Liens would be of such
character that no violation of any of the provisions regarding the Limitation on
Liens set forth above would result, or (ii) the Company during the six months
immediately following the effective date of such Sale and Leaseback Transaction
causes to be applied an amount equal to the Value of such Sale and Leaseback
Transaction to (A) the acquisition of property or (B) the voluntary retirement
of Funded Debt (whether by redemption, defeasance, repurchase, or otherwise)
(Section 5.05).
LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES
The Senior Indenture provides that the Company shall not, and shall not
permit any Restricted Subsidiary to, suffer to exist any encumbrance or
restriction (other than pursuant to law, regulation or order) on the ability of
any Restricted Subsidiary (i) to pay, directly or indirectly, dividends or make
any other distributions in respect of its common stock or preferred stock, if
any, or pay any Indebtedness or other obligation owed to the Company or any
other Restricted Subsidiary; (ii) to make loans or advances to the Company or
any Restricted Subsidiary; or (iii) to transfer any of its property or assets to
the Company or any Restricted Subsidiary, except any encumbrance or restriction
(a) with respect to any series of Securities, pursuant to any agreement in
effect on the date the Securities are issued, (b) pursuant to an agreement
entered into by such Restricted Subsidiary prior to the date on which such
Restricted Subsidiary was acquired by the Company and not entered into in
anticipation of becoming a Restricted Subsidiary or (c) pursuant to an agreement
effecting a renewal, extension, refinancing or refunding of Indebtedness
incurred pursuant to an agreement referred to in clause (a) or (b) above;
provided, however, that the provisions contained in such renewal, extension,
refinancing or refunding agreement relating to such encumbrance or restriction
are no more restrictive in any material respect than the provisions contained in
the agreement the subject thereof (Section 5.06).
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LIMITATION ON RESTRICTED SUBSIDIARY INDEBTEDNESS AND PREFERRED STOCK
The Senior Indenture provides that the Company will not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume
or otherwise become liable with respect to, extend the maturity of or become
responsible for the payment of any Indebtedness or preferred stock other than:
(i) with respect to any series of Senior Debt Securities, Indebtedness or
preferred stock of a Restricted Subsidiary outstanding on the date the Senior
Debt Securities are issued; (ii) with respect to any series of Senior Debt
Securities, Indebtedness of a Restricted Subsidiary which represents the
assumption by such Restricted Subsidiary of Indebtedness of another Restricted
Subsidiary or the issuance of preferred stock by such Restricted Subsidiary to
another Restricted Subsidiary in connection with a merger of such Restricted
Subsidiaries, provided that no Restricted Subsidiary may assume or otherwise
become responsible for any Indebtedness of an entity or issue any preferred
stock to an entity which is not a Restricted Subsidiary; (iii) Indebtedness or
preferred stock of any corporation existing at the time such corporation became
a Restricted Subsidiary, provided that such Indebtedness was not incurred or
such preferred stock issued in anticipation of such corporation becoming a
Restricted Subsidiary; (iv) Indebtedness of a Restricted Subsidiary arising from
agreements providing for indemnification, adjustment of purchase price or
similar obligations or from guarantees, letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries incurred or assumed in connection with the disposition
of any business, property or Restricted Subsidiary, other than guarantees or
similar credit support by any Restricted Subsidiary of Indebtedness incurred by
any person acquiring all or any portion of such business, property or Restricted
Subsidiary for the purpose of financing such acquisition, provided that the
maximum aggregate liability in respect of all such Indebtedness in the nature of
such guarantees will at no time exceed the gross proceeds (including cash and
the fair market value of property other than cash) actually received from the
disposition of such business, property or Restricted Subsidiary; (v)
Indebtedness of a Restricted Subsidiary in respect of performance bonds,
bankers' acceptances, letters of credit and surety bonds provided by such
Restricted Subsidiary in the ordinary course of business; (vi) Indebtedness or
preferred stock of a Restricted Subsidiary if the total of such Indebtedness and
preferred stock and the aggregate amount of Liens which (including the Value of
certain restricted Sale and Leaseback Transactions) are required to be less than
10% of Consolidated Net Assets does not exceed 10% of Consolidated Net Assets at
the time such Indebtedness or Preferred Stock is issued; (vii) any Indebtedness
incurred prior to, at the time of, or within 12 months after the acquisition of
property for the purpose of financing all or a part of the purchase price
thereof directly incurred by a Restricted Subsidiary, provided that (a) the
amount of any such Indebtedness is paid in full to the seller of the property
not later than 360 days after the subject property is delivered to the purchaser
thereof (provided that, in the event that there is a good faith dispute with
respect to the amount of such payment due, it shall be sufficient if the amount
believed in good faith to be payable to the seller is set aside for payment and
the resolution of such dispute is pursued promptly by the Restricted Subsidiary)
and (b) the aggregate amount of such Indebtedness and the aggregate amount of
Liens permitted because such Liens are related to the financing of property does
not exceed $15,000,000 at any one time; or (viii) Indebtedness (including,
without limitation, Indebtedness arising from a guarantee) or preferred stock
issued to and held by the Company or a wholly owned subsidiary of the Company,
but only for so long as held or owned by the Company or a wholly owned
subsidiary of the Company (Section 5.07).
CONSOLIDATION, MERGER, AND SALE OF ASSETS
Each Indenture provides that the Company will not consolidate with, sell or
lease all or substantially all its assets to, or merge with or into any other
corporation, or purchase all or substantially all the assets of another
corporation, unless (i) the Company shall be the continuing corporation, or the
successor, transferee or lessee corporation is organized under the laws of the
United States of America or any state thereof and assumes the Company's
obligations under the Securities and the Indenture and (ii) immediately after
giving effect to such transaction, no default will have occurred and be
continuing. A purchase by a Subsidiary of all or substantially all of the assets
of another corporation shall not be deemed to be a purchase of such assets by
the Company (Section 5.09). Notwithstanding the foregoing, if, upon any such
consolidation or merger of the Company with or into any other corporation, or
upon any conveyance of the property of the Company as an entirety or
substantially as an entirety to any other corporation, any properties of any
character owned by the
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Company immediately prior thereto would thereupon become subject to any Lien,
simultaneously with such consolidation, merger or conveyance, effective
provision will be made to secure the Securities outstanding equally and ratably
with or prior to the debt secured by such Lien (Section 15.01).
MODIFICATION OF THE INDENTURE
Each Indenture contains provisions permitting the Company and the Trustee,
without the consent of the holders of Debt Securities, to, among other things,
establish the form and terms of any series of the Debt Securities issuable
thereunder by one or more supplemental indentures, and, with the consent of the
holders of not less than 66 2/3% in the aggregate principal amount of the Debt
Securities then outstanding which are affected thereby, to modify and alter the
terms of the Indenture or any supplemental indenture or the rights of the
holders of the Debt Securities of such series to be affected, except that no
such modification or alteration may be made which will (i) extend the fixed
maturity of any Debt Securities, or reduce the rate or extend the time of
payment of interest thereon, or reduce the amount of the principal thereof, or
reduce any premium payable upon the redemption or repayment thereof, or make the
principal thereof or interest or premium thereon payable in any coin or currency
other than that provided in the Debt Securities, or impair the right to
institute suit for the enforcement of any such payment on or after the maturity
thereof, without the consent of the holder of each Debt Security so affected, or
(ii) reduce the percentage of Debt Securities of any series, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of all the Debt Securities then outstanding, or (iii)
modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee (Sections 13.01 and 13.02).
In addition, under the Subordinated Indenture, no modification or amendment
thereof may, without the consent of the holder of each Outstanding Subordinated
Debt Security affected thereby, modify any of the provisions of such Indenture
relating to the subordination of the Subordinated Debt Securities in a manner
adverse to the holders thereof; and no such modification or amendment may
adversely affect the rights of any holder of Senior Indebtedness without the
consent of such holder of Senior Indebtedness (Section 13.07 of the Subordinated
Indenture).
DEFAULTS
Each Indenture provides that events of default with respect to any series
of Debt Securities will be (i) default for 30 days in payment of interest upon
any Debt Security of such series; (ii) default in payment of principal (other
than pursuant to a sinking fund) or premium, if any, on any Debt Security of
such series; (iii) default for 30 days in payment of any sinking fund instalment
when due by the terms of the Debt Securities of such series; (iv) default under
another instrument or in respect of another series of Debt Securities resulting
in acceleration of maturity of indebtedness of the Company in an amount
exceeding $10,000,000 if such acceleration is not rescinded or annulled, or such
indebtedness shall not have been discharged, within 10 days after written notice
to the Company by the Trustee or to the Company and the Trustee by the holders
of at least 10% in principal amount of the Outstanding Securities of such
series; (v) certain events in bankruptcy or insolvency; (vi) default, for 90
days after written notice to the Company by the Trustee or to the Company and
Trustee by the holders of at least 25% in aggregate principal amount of the Debt
Securities of such series then outstanding, in performance of any covenant or
agreement in the Indenture other than (A) a default in a covenant or agreement
included in the Indenture solely for the benefit of a series of Securities other
than such series or (B) a default (other than a default referred to in clauses
(i) through (v) above) in a covenant or condition if the Company has received
the prior written consent of the holders of at least 66 2/3% in aggregate
principal amount of the Debt Securities of such series then outstanding waiving
compliance with such covenant or condition; and (vii) the incurrence of any
other event of default with respect to Debt Securities of such series (Section
6.01). If an event of default with respect to Debt Securities of any series
should occur and be continuing, either the Trustee or the holders of 25% of the
principal amount of outstanding Debt Securities of such series may declare each
Indenture Security of that series due and payable (Section 6.02). The Company
will be required to file annually with the Trustee a statement of an officer as
to the fulfillment by the Company of its obligations under the Indenture during
the preceding year (Section 5.10).
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Holders of a majority in principal amount of the outstanding Debt
Securities of any series will be entitled to control certain actions of the
Trustee under the Indenture and to waive past defaults with respect to such
series (Sections 6.02 and 6.06). Subject to the provisions of the Indenture
relating to the duties of the Trustee, the Trustee will not be under any
obligation to exercise any of the rights or powers vested in it by the Indenture
at the request, order or direction of any of the holders of Debt Securities,
unless one or more of such holders of Debt Securities shall have offered to the
Trustee reasonable indemnity (Section 10.01).
If an event of default occurs and is continuing with respect to a series of
Debt Securities, any sums held or received by the Trustee under the Indenture
may be applied to reimburse the Trustee for its reasonable compensation and
expenses incurred prior to any payments to holders of Debt Securities of such
series (Section 6.05).
The right of any holder of Debt Securities of any series to institute
action for any remedy is subject to certain conditions precedent, including a
request to the Trustee by the holders of not less than 25% in principal amount
of the Debt Securities of that series outstanding to take action, and an offer
to the Trustee of reasonable indemnity satisfactory to the Trustee against
liabilities incurred by it in so doing and the Trustee does not take such action
within 60 days from receiving such request (Section 6.07).
DEFEASANCE
The Company may at any time terminate all of its obligations with respect
to the Debt Securities of a series ("defeasance"), except for certain
obligations, including those regarding any trust established for a defeasance
and obligations to register the transfer and exchange of the Securities, to
replace mutilated, destroyed, lost or stolen Debt Securities, and to maintain
agencies in respect of Securities. The Company may at any time terminate its
obligations under certain covenants set forth in the Indenture, some of which
are described above, and any omission to comply with such obligations shall not
constitute a default or event of default with respect to the Securities issued
under the Indenture ("covenant defeasance"). In order to exercise either
defeasance or covenant defeasance, the Company shall deposit with the Trustee,
in trust for the benefit of the holders thereof, (i) funds sufficient to pay, or
(ii) such amount of direct obligations of the United States of America as will
or will together with the income thereon without consideration of any
reinvestment thereof be sufficient to pay, all sums due for principal of,
premium, if any, and interest on the Debt Securities of a particular series, as
they shall become due from time to time, and comply with certain other
conditions. Such defeasance or covenant defeasance is conditioned upon the
Company's delivery of an opinion of counsel that the holders of the Debt
Securities of such series will have no federal income tax consequences as a
result of such deposit (Section 11.02).
SUBORDINATION
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization, the payment of the principal of (and
premium, if any) and interest on the Subordinated Debt Securities is to be
subordinated to the extent provided in the Subordinated Indenture in right of
payment to the prior payment in full of all Senior Indebtedness, but the
obligation of the Company to make payment of principal (and premium, if any) or
interest on the Subordinated Debt Securities will not otherwise be affected. No
payment on account of principal (or premium, if any), sinking fund or interest
may be made on the Subordinated Debt Securities at any time when there is a
default in the payment of principal, premium, if any, sinking fund or interest
on Senior Indebtedness. In the event that, notwithstanding the foregoing, any
payment by the Company described in the foregoing sentence is received by the
Subordinated Trustee or the holders of any of the Subordinated Debt Securities
before all Senior Indebtedness is paid in full, such payment or distribution
will be paid over to the holders of such Senior Indebtedness or on their behalf
for application to the payment of all such Senior Indebtedness remaining unpaid
until all such Senior Indebtedness has been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness. Subject to payment in full of Senior Indebtedness, the holders of
the Subordinated Debt Securities will be subrogated to the rights of the holders
of the Senior Indebtedness to the extent of payments made to the holders of such
Senior Indebtedness out of the distributive share of the Subordinated Debt
Securities. By reason of such subordination, in the event of a distribution of
assets upon insolvency, certain
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general creditors of the Company may recover more, ratably, than holders of the
Subordinated Debt Securities. The Subordinated Indenture provides that the
subordination provisions thereof will not apply to money and securities held in
trust pursuant to the defeasance provisions of the Subordinated Indenture
(Article Fifteen of the Subordinated Indenture).
Senior Indebtedness is defined in the Subordinated Indenture as the
principal of (and premium, if any) and unpaid interest on (i) indebtedness of
the Company (including indebtedness of others guaranteed by the Company),
whether outstanding on the date of the Subordinated Indenture or thereafter
created, incurred, assumed or guaranteed, for money borrowed (other than the
Indenture Securities issued under the Subordinated Indenture), unless in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding it is provided that such indebtedness is not senior or prior in
right of payment to the Subordinated Debt Securities or is made subordinate to
any other indebtedness of the Company on the same or substantially the same
basis as the Subordinated Debt Securities are made subordinate, and (ii)
renewals, extensions, modifications and refundings of any such indebtedness.
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Debt Securities, the accompanying Prospectus Supplement
or the information incorporated by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of a recent date.
CONCERNING THE TRUSTEES
Each of the Senior Trustee and the Subordinated Trustee is one of the banks
participating in a revolving credit agreement and is a counterparty in
interest-rate swap agreements with the Company. In addition, the Senior Trustee
is trustee for noteholders under the Note Facility Agreement for the Company's
Employees' Stock Ownership Plan ("ESOP") and is indexing agent under the ESOP
Indexing Agreement.
DESCRIPTION OF DEBT WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Debt Warrants to purchase Underlying Debt Securities (the "Offered
Debt Warrants"). The Debt Warrants will be issued under warrant agreements (each
a "Debt Warrant Agreement") to be entered into between the Company and a bank or
trust company, as warrant agent (the "Debt Warrant Agent"), all as shall be set
forth in the Prospectus Supplement relating to the Debt Warrants being offered
thereby. A copy of the form of Debt Warrant Agreement, including the form of
certificate representing the Debt Warrants (the "Debt Warrant Certificates"), is
filed as an exhibit to the registration statement of which this Prospectus is a
part. The following summaries of certain provisions of the Debt Warrant
Agreement and the Debt Warrant Certificates do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all the
provisions of the Debt Warrant Agreement and the Debt Warrant Certificates,
respectively, including the definitions therein of certain terms.
GENERAL
The Prospectus Supplement will describe the terms of the Offered Debt
Warrants and the Debt Warrant Agreement relating to Debt Warrants, including the
following:
(1) the title and aggregate number of such Debt Warrants;
(2) the offering price of such Debt Warrants;
(3) the title, aggregate principal amount and terms of the Underlying
Debt Securities purchasable upon exercise of such Debt Warrants;
(4) the principal amount of Underlying Debt Securities that may be
purchased upon exercise of each such Debt Warrant, and the price, or the
manner of determining the price, at which such principal amount may be
purchased upon such exercise;
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(5) the time or times at which, or period or periods in which, such
Debt Warrants may be exercised and the expiration date of such Debt
Warrants;
(6) the terms of any right of the Company to redeem such Debt
Warrants;
(7) whether such Debt Warrants are to be issued with (a) any Debt
Securities and, if so, the title, aggregate principal amount and terms of
such Debt Securities (as specified under "Description of Debt Securities")
and the number of such Debt Warrants to be issued with each $1,000
principal amount of such Debt Securities (or such other principal amount as
may be established) or (b) any other Securities and, if so, the number and
terms thereof;
(8) the date, if any, on and after which such Debt Warrants and such
Debt Securities or other Securities will be separately transferable;
(9) a discussion of the federal income tax considerations applicable
to such Debt Warrants and Underlying Debt Securities; and
(10) any other terms of such Debt Warrants.
Debt Warrant Certificates may be issued in registered or bearer form, or
both, as set forth in the Prospectus Supplement, and will be exchangeable for
new Debt Warrant Certificates of different denominations. No service charge will
be made for any permitted transfer or exchange of Debt Warrant Certificates, but
the Company may require payment of any tax or other governmental charge payable
in connection therewith. Debt Warrants may be exercised at the corporate trust
office of the Debt Warrant Agent or any other office indicated in the Prospectus
Supplement.
EXERCISE OF DEBT WARRANTS
Each Offered Debt Warrant will entitle the holder thereof to purchase such
amount of Underlying Debt Securities at the exercise price set forth in, or
calculable from, the Prospectus Supplement relating to such Offered Debt
Warrants. After the close of business on the applicable expiration date,
unexercised Debt Warrants will become void.
Offered Debt Warrants may be exercised by payment to the Debt Warrant Agent
of the applicable exercise price and by delivery to the Debt Warrant Agent of
the related Debt Warrant Certificate, with the reverse side thereof properly
completed. Offered Debt Warrants will be deemed to have been exercised upon
receipt of the exercise price, subject to the receipt by the Debt Warrant Agent,
within five business days thereafter, of the Debt Warrant Certificate or
Certificates evidencing such Offered Debt Warrants. Upon receipt of such payment
and the properly completed Debt Warrant Certificates at the corporate trust
office of the Debt Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, deliver the amount of
Underlying Debt Securities purchased upon such exercise. If fewer than all of
the Offered Debt Warrants represented by any Debt Warrant Certificate are
exercised, a new Debt Warrant Certificate will be issued for the unexercised
Offered Debt Warrants. The holder of an Offered Debt Warrant will be required to
pay any tax or other governmental charge that may be imposed in connection with
any transfer involved in the issuance of Underlying Debt Securities purchased
upon such exercise.
MODIFICATIONS
The Debt Warrant Agreement and the terms of the Debt Warrants may be
modified or amended by the Company and the Debt Warrant Agent, without the
consent of any holder, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
therein, or in any other manner that the Company deems necessary or desirable
and that will not materially and adversely affect the interests of the holders
of the Offered Debt Warrants.
The Company and the Debt Warrant Agent may also modify or amend the Debt
Warrant Agreement and the terms of the Offered Debt Warrants with the consent of
the holders of not less than a majority in number of the then outstanding
unexercised Debt Warrants affected thereby; provided that no such modification
or amendment that accelerates the expiration date, increases the exercise price,
reduces the number of
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outstanding Debt Warrants the consent of the holders of which is required for
any such modification or amendment, or otherwise materially and adversely
affects the rights of the holders of the Debt Warrants, may be made without the
consent of each holder affected thereby.
NO RIGHTS AS HOLDERS OF UNDERLYING DEBT SECURITIES
Holders of Debt Warrants are not entitled, by virtue of being such holders,
to payments of principal of (premium, if any, on) or interest, if any, on the
related Underlying Debt Securities or to exercise any other rights whatsoever as
holders of the Underlying Debt Securities.
DESCRIPTION OF PREFERRED STOCK
The Company may issue (either separately or together with other Offered
Securities) shares of its Preferred Stock. Under its Restated Certificate of
Incorporation (the "Certificate of Incorporation"), the Company is authorized to
adopt resolutions providing for the issuance, in one or more series, of up to
5,000,000 shares of its Preferred Stock, with such powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof as shall be adopted by the Board of
Directors or a duly authorized committee thereof.
The description below sets forth certain general terms and provisions of
the Preferred Stock covered by this Prospectus. The specific terms of any (i)
Preferred Stock proposed to be sold pursuant to this Prospectus and the
accompanying Prospectus Supplement (the "Offered Preferred Stock") and (ii) any
Preferred Stock to be represented by Depositary Shares or issuable upon the
conversion or exchange of other Offered Securities (the "Underlying Preferred
Stock") will be described in such Prospectus Supplement. The following summaries
of certain provisions of the Preferred Stock do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, the
Certificate of Incorporation and the Certificate of Designations relating to the
offered or Underlying Preferred Stock.
If so indicated in the Prospectus Supplement, the terms of the Offered or
Underlying Preferred Stock may differ from the terms set forth below, except
those terms required by the Certificate of Incorporation.
GENERAL
Under the Certificate of Incorporation, each series of Preferred Stock of
the Company may have such preferences and rights as to dividends and
distributions of assets upon liquidation with respect to any other series of
Preferred Stock of the Company as the Board of Directors determines. The Offered
and Underlying Preferred Stock will, when issued, be fully paid and
non-assessable and holders thereof will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to the Offered
Preferred Stock, the Underlying Preferred Stock, or both, as the case may be,
for specific terms, including:
(1) the title and stated value of such Preferred Stock;
(2) the number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such Preferred
Stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
(4) the date from which dividends on such Preferred Stock shall
accumulate, if applicable;
(5) the liquidation preference of such Preferred Stock;
(6) the procedures for any auction and remarketing, if any, of such
Preferred Stock;
(7) the provision for a sinking fund, if any, for such Preferred
Stock;
(8) the provision for redemption, if applicable, of such Preferred
Stock;
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(9) whether interests in such Preferred Stock will be represented by
Depositary Shares;
(10) whether such Preferred Stock will be convertible into or
exchangeable for shares of Common Stock or other Securities and, if so, the
terms and conditions upon which such Preferred Stock will be so convertible
or exchangeable, including the conversion price or exchange ratio and the
conversion or exchange period (or the method of determining the same);
(11) whether such Preferred Stock will be listed on any securities
exchange;
(12) whether such Preferred Stock will be sold with any other Offered
Securities and, if so, the amount and terms thereof;
(13) any other specific terms, preferences or rights of, or
limitations or restrictions on, such Preferred Stock; and
(14) a discussion of federal income tax considerations applicable to
such Preferred Stock.
Subject to the Certificate of Incorporation and to any limitations
contained in outstanding Preferred Stock, the Company may issue additional
series of Preferred Stock, at any time or from time to time, with such powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as the Board of Directors
or any duly authorized committee thereof determine, all without further action
of the stockholders, including holders of then outstanding Preferred Stock, of
the Company.
DIVIDENDS
Holders of the Preferred Stock will be entitled to receive cash dividends,
when, as and if declared by the Board of Directors, out of assets of the Company
legally available for payment, at such rate and on such dates as will be set
forth in the Prospectus Supplement. Each dividend will be payable to holders of
record as they appear on the stock book of the Company on the record date fixed
by the Board of Directors. Dividends, if cumulative, will be cumulative from and
after the date set forth in the Prospectus Supplement.
The Company may not (i) declare or pay dividends (except in stock of the
Company junior to the Preferred Stock (the "Junior Stock")) or make any other
distributions on any Junior Stock or (ii) purchase, redeem or otherwise acquire
Junior Stock or set aside funds for such purpose (except (A) in a
reclassification or exchange of Junior Stock through the issuance of other
Junior Stock or (B) with the proceeds of a reasonably contemporaneous sale of
Junior Stock), if there are arrearages in dividends or failure in the payment of
the Company's sinking fund or redemption obligations on any of its Preferred
Stock and, in the case of (i) above, if dividends in full for the current
quarterly dividend period have not been paid or declared on any of its Preferred
Stock.
Dividends in full may not be declared or paid or set apart for payment on
any series of Preferred Stock unless (i) there are no arrearages in dividends
for any past quarterly dividend periods on any series of Preferred Stock and
(ii) to the extent that such dividends are cumulative, dividends in full for the
current quarterly dividend period have been declared or paid on all Preferred
Stock. Any dividends declared or paid when dividends are not so declared, paid
or set apart in full will be shared ratably by the holders of all series of
Preferred Stock in proportion to such respective arrearages and undeclared and
unpaid current quarterly cumulative dividends. No interest, or sum of money in
lieu of interest, will be payable in respect of any dividend payment or payments
that may be in arrears.
CONVERSION AND EXCHANGE
If the Offered or Underlying Preferred Stock will be convertible into or
exchangeable for Common Stock or other Securities, the Prospectus Supplement
will set forth the terms and conditions of such conversion or exchange,
including the conversion price or exchange ratio (or the method of calculating
the same), the conversion or exchange period (or the method of determining the
same), whether conversion or exchange will be mandatory or at the option of the
holder or the Company, the events requiring an adjustment of the conversion
price or the exchange ratio and provisions affecting conversion or exchange in
the event of the
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redemption of such Preferred Stock. Such terms may also include provisions under
which the number of shares of Common Stock or the number of other Securities to
be received by the holders of such Preferred Stock upon such conversion or
exchange would be calculated according to the market price of the Common Stock
or such other Securities as of a time stated in such Prospectus Supplement.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of the Preferred Stock
will be entitled to receive out of assets of the Company available for
distribution to stockholders, before any distribution of assets is made to
holders of any Junior Stock, liquidating distributions in the amount set forth
in the Prospectus Supplement plus all accrued and unpaid dividends. If, upon any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
the amounts payable with respect to the Preferred Stock are not paid in full,
the holders of Preferred Stock will share ratably in any such distribution of
assets of the Company in proportion to the full respective preferential amounts
to which they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of the Preferred Stock will
not be entitled to any further participation in any distribution of assets by
the Company. A consolidation or merger of the Company with or into any other
corporation or corporations or a sale of all or substantially all of the assets
of the Company will not be deemed to be a liquidation, dissolution or winding up
of the Company.
REDEMPTION
If so provided in the Prospectus Supplement, the Offered or Underlying
Preferred Stock will be redeemable in whole or in part at the option of the
Company, at the times and at the redemption prices set forth therein.
If dividends on any series of Preferred Stock are in arrears or the Company
has failed to fulfill its sinking fund or redemption obligations with respect to
any series of Preferred Stock, the Company may not purchase or redeem any shares
of Preferred Stock or any other capital stock ranking on a parity with the
Preferred Stock as to dividends or upon liquidation, nor permit any subsidiary
to do so, without in either case the consent of the holders of at least
two-thirds of all shares of Preferred Stock then outstanding; provided, however,
that (1) to meet its purchase, retirement or sinking fund obligations with
respect to any series of Preferred Stock, the Company may use shares of such
Preferred Stock acquired prior to such arrearages or failure of payment and then
held as treasury stock and (2) the Company may complete the purchase or
redemption of shares of Preferred Stock for which a contract was entered into
for any purchase, retirement or sinking fund purposes prior to such arrearages
or failure of payment.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement, or except as
expressly required by applicable law, the holders of the Preferred Stock will
not be entitled to vote. As used herein, the term "Applicable Preferred Stock"
means those series of Preferred Stock to which the provisions described herein
are expressly made applicable by resolutions of the Board of Directors of the
Company.
If the equivalent of six quarterly dividends payable on any share of any
series of Applicable Preferred Stock are in default (whether or not such
dividends have been declared or such defaulted dividends are consecutive), the
number of directors of the Company will be increased by two and the holders of
all outstanding series of Applicable Preferred Stock (whether or not dividends
thereon are in default), voting as a single class without regard to series, will
be entitled to elect the two additional directors until four consecutive
quarterly dividends are paid or declared and set apart for payment, if such
share is noncumulative, or until all arrearages in dividends and dividends in
full for the current quarterly period are paid or declared and set apart for
payment, if such share is cumulative, whereupon all voting rights described
herein shall be divested from the Applicable Preferred Stock. The holders of
Applicable Preferred Stock may exercise their special class voting rights at
meetings of the stockholders for the election of directors or at special
meetings for the purpose
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of electing such directors, in either case at which the holders of not less than
one-third of the aggregate number of shares of Applicable Preferred Stock are
present in person or by proxy.
The affirmative vote of the holders of at least two-thirds of the
outstanding shares of Preferred Stock will be required (i) for any amendment of
the Certificate of Incorporation that will adversely affect the powers,
preferences or rights of the holders of the Preferred Stock or (ii) to create
any class of stock (or increase the authorized number of shares of any class of
stock) that will have preference as to dividends or upon liquidation over the
Preferred Stock or create any stock or other security convertible into or
exchangeable for or evidencing the right to purchase any such stock. The
affirmative vote of the holders of at least two-thirds of the outstanding shares
of Preferred Stock of a series will be required for any amendment of the
Certificate of Incorporation (or the related Certificate of Designations) that
will adversely affect the powers, preferences or rights of Preferred Stock of
such series.
The affirmative vote of the holders of a majority of then outstanding
shares of Preferred Stock will be required to (i) increase the authorized amount
of the Preferred Stock or (ii) create any class of stock (or increase the
authorized number of shares of any class of stock) that will rate on a parity
with the Preferred Stock either as to dividends or upon liquidation, or create
any stock or other security convertible into or exchangeable for or evidencing
the right to purchase any such stock unless such stock is being issued for the
purpose of redeeming all of such outstanding Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
The Company may offer (either separately or together with other Offered
Securities) Depositary Shares representing interests in shares of its Preferred
Stock of one or more series. The Depositary Shares will be issued under deposit
agreements (each a "Deposit Agreement") to be entered into between the Company
and a bank or trust company, as depositary (the "Preferred Stock Depositary"),
all as set forth in the Prospectus Supplement relating to the Depositary Shares
being offered thereby. A copy of the form of Deposit Agreement, including the
form of depositary receipts evidencing Depositary Shares (the "Depositary
Receipts"), is filed as an exhibit to the registration statement of which this
Prospectus is a part. The following summaries of certain provisions of the
Depositary Shares do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Deposit
Agreement and the Deposit Receipts, including the definitions therein of certain
terms.
The description below sets forth certain general terms and provisions of
the Depositary Shares covered by this Prospectus. The specific terms of any
Depositary Shares proposed to be sold pursuant to this prospectus and the
accompanying Prospectus Supplement (the "Offered Depositary Shares") will be
described in such Prospectus Supplement.
If so indicated in the Prospectus Supplement, the terms of the Depositary
Shares may differ from the terms set forth below.
GENERAL
The Company will provide for the issuance by the Preferred Stock Depositary
to the public of the Depositary Receipts evidencing the Depositary Shares, each
of which will represent a fractional interest (to be specified in the Prospectus
Supplement) in one share of the related Preferred Stock, as described below.
Reference is made to the Prospectus Supplement relating to the Offered
Depositary Shares for specific terms, including:
(1) the terms of the series of Preferred Stock deposited by the
Company under the Deposit Agreement;
(2) the number of such Depositary Shares, the fraction of one share of
such Preferred Stock represented by one such Depositary Share;
(3) a discussion of the federal income tax considerations applicable
to such Depositary Shares;
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(4) whether such Depositary Shares will be listed on any securities
exchange;
(5) whether such Depositary Shares will be sold with any other Offered
Securities and, if so, the amount and terms thereof; and
(6) any other terms of such Depositary Shares.
The shares of Preferred Stock of a series represented by the Depositary
Shares will be deposited by the Company provided in the Deposit Agreement. The
Prospectus Supplement will set forth the name and address of the Preferred Stock
Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fractional
interest in a share of Preferred Stock of such series represented by such
Depositary Share, to all rights and preferences of the Preferred Stock
represented by such Depositary Share (including dividend, voting and liquidation
rights and any redemption, conversion or exchange rights).
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends and other
cash distributions received in respect of the related series of Preferred Stock
to the record holders of Depositary Shares in proportion to the number of such
Depositary Shares owned by such holders on the relevant record date. The
Preferred Stock Depositary will distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed will be added to and treated as
part of the next sum, if any, received by the Preferred Stock Depositary for
distribution to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto, unless the Preferred Stock Depositary
determines that it is not feasible to make such distribution, in which case the
Preferred Stock Depositary may, with the approval of the Company, sell such
property and distribute the net proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Company to holders of
the related series of Preferred Stock will be made available to holders of
Depositary Shares.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of Depositary Receipts at the corporate trust office of the
Preferred Stock Depositary (unless the related shares of Preferred Stock have
previously been called for redemption), the holder of the Depositary Shares
evidenced thereby will be entitled to receive at such office, to or upon such
holder's order, the number of whole shares of the related series of Preferred
Stock and any money or other property represented by such Depositary Shares.
However, shares of Preferred Stock so withdrawn may not be redeposited. If the
holder requests withdrawal of less than all the shares of Preferred Stock to
which such holder is entitled, or if such holder would otherwise be entitled to
a fractional share of Preferred Stock, the Preferred Stock Depositary will
deliver to such holder a new Depositary Receipt evidencing such balance or
fractional share.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems Preferred Stock held by the Preferred Stock
Depositary, the Preferred Stock Depositary will redeem as of the same redemption
date the number of Depositary Shares representing the Preferred Stock so
redeemed; provided that the Company paid in full to the Preferred Stock
Depositary the redemption price of such Preferred Stock plus an amount equal to
any accrued and unpaid dividends thereon to the date fixed for redemption. The
redemption price per Depositary Share will be equal to the applicable fraction
of the redemption price per share and accrued and unpaid dividends payable with
respect to such Preferred Stock. If less than all the Depositary Shares are to
be redeemed, the Depositary Shares to be
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redeemed will be selected by lot or pro rata or by another equitable method, in
each case as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding, and all rights of the
holders of the Depositary Shares so called for redemption will cease, except the
right to receive the moneys payable upon such redemption and any money or other
property to which the holders of such Depositary Shares were entitled upon such
redemption and surrender to the Preferred Stock Depositary of the Depositary
Receipts evidencing such Depositary Shares.
CONVERSION AND EXCHANGE
The Depositary Shares, as such, are not convertible into or exchangeable
for Common Stock or other Securities. Nevertheless, if Preferred Stock
represented by the Depositary Shares is convertible into or exchangeable for
Common Stock or other Securities, the Depositary Receipts may be surrendered by
the holder thereof to the Preferred Stock Depositary with written instructions
to convert or exchange such Preferred Stock into whole shares of Common Stock or
other Securities, as specified in the related Prospectus Supplement. The
Company, upon receipt of such instructions and any amounts payable in respect
thereof, will cause the conversion or exchange thereof and will deliver to the
holder such whole shares of Common Stock or such whole number of other
Securities (and cash in lieu of any fractional share or Security). In the case
of a partial conversion or exchange, the holder will receive a new Depositary
Receipt evidencing the unconverted or unexchanged balance.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which holders of one or more
series of Preferred Stock are entitled to vote, the Preferred Stock Depositary
will mail the information contained in such notice of meeting to the holders of
the Depositary Shares relating to such Preferred Stock. Each record holder of
such Depositary Shares on the record date for such meeting will be entitled to
instruct the Preferred Stock Depositary as to the manner in which to vote the
number of shares of Preferred Stock represented by such Depositary Shares. The
Company will agree to take all reasonable action that may be deemed necessary by
the Preferred Stock Depositary in order to enable the Preferred Stock Depositary
to vote in accordance with each holder's instructions. The Preferred Stock
Depositary will abstain from voting Preferred Stock to the extent it does not
receive instructions from the holders of Depositary Shares representing such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However, any amendment
that materially and adversely alters the rights of the holders of Depositary
Shares will not be effective unless such amendment has been approved by the
holders of at least a majority of the Depositary Shares then outstanding;
provided that any amendment that prejudices any substantial right of the holders
of Depositary Shares will not become effective until the expiration of 90 days
after notice of such amendment has been given to such holders. A holder that
continues to hold one or more Depositary Receipts at the expiration of such
90-day period will be deemed to consent to, and will be bound by, such
amendment. No amendment may impair the right of any holder to surrender such
holder's Depositary Receipt and receive the related Preferred Stock, as
discussed above under "Withdrawal of Preferred Stock."
The Deposit Agreement may be terminated by the Company at any time upon not
less than 60 days' prior written notice to the Preferred Stock Depositary. In
any such case, the Preferred Stock Depositary will deliver to each holder of
Depositary Shares, upon surrender of the related Depositary Receipts, the number
of whole shares of the related series of Preferred Stock to which such holder is
entitled, together with cash in lieu of any fractional share. The Deposit
Agreement will terminate automatically after all the related Preferred Stock has
been redeemed, withdrawn, converted or exchanged or there has been a final
distribution in respect of the
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Preferred Stock represented by such Depositary Shares in connection with any
liquidation, dissolution or winding up of the Company.
CHARGES OF PREFERRED STOCK DEPOSITARY
Except as provided in the Prospectus Supplement, the Company will pay the
fees and expenses of the Preferred Stock Depositary, and the holders of
Depositary Receipts will be required to pay any tax or other governmental charge
that may be imposed in connection with the transfer, exercise, surrender or
split-up of Depositary Receipts.
MISCELLANEOUS
The Preferred Stock Depositary will forward to the holders of Depositary
Shares all reports and communications from the Company that are delivered to the
Preferred Stock Depositary and that the Company is required to furnish to the
holders of the Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if it
is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Preferred Stock Depositary under the Deposit Agreement will be
limited to performance in good faith of their respective duties thereunder, and
neither entity will be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or related shares of Preferred Stock unless
satisfactory indemnity is furnished.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary. Such successor
Preferred Stock Depositary must be appointed within 60 days after delivery of
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
The Company may issue (either separately or together with other Offered
Securities) shares of its Common Stock. Under the Certificate of Incorporation,
the Company is authorized to issue up to 200,000,000 shares of its Common Stock.
The Prospectus Supplement relating to an offering of Common Stock, or to the
issuance of Common Stock upon the exercise of Common Warrants or to Common Stock
issuable upon the conversion or exchange of other Offered Securities, will
describe terms relevant thereto, including the number of shares offered, any
initial offering price, and market price and dividend information, as well as,
if applicable, information on such other Offered Securities.
DESCRIPTION OF COMMON WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Common Warrants to purchase Common Stock (the "Offered Common
Warrants"). The Common Warrants will be issued under warrant agreements (each a
"Common Warrant Agreement") to be entered into between the Company and a bank or
trust company, as warrant agent (the "Common Warrant Agent"), all as set forth
in the Prospectus Supplement relating to the Common Warrants being offered
thereby. A copy of the form of Common Warrant Agreement, including the form of
certificate representing the Common Warrants (the "Common Warrant
Certificates"), is filed as an exhibit to the registration statement of which
this Prospectus is a part. The following summaries of certain provisions of the
Common Warrant Agreement and the Common Warrant Certificates do not purport to
be complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Common Warrant Agreement and the Common Warrant
Certificates, respectively, including the definitions therein of certain terms.
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<PAGE> 44
GENERAL
The Prospectus Supplement will describe the terms of the Offered Common
Warrants, the Common Warrant Agreement relating to such Common Warrants and the
Common Warrant Certificates representing such Common Warrants, including the
following:
(1) the title and aggregate number of such Common Warrants;
(2) the offering price of such Common Warrants;
(3) the number of shares of Common Stock that may be purchased upon
exercise of each such Common Warrant; the price, or the manner of
determining the price, at which such shares may be purchased upon such
exercise; if other than cash, the property and manner in which the exercise
price may be paid; and any minimum number of such Common Warrants that are
exercisable at any one time;
(4) the time or times at which, or period or periods which, such
Common Warrants may be exercised and the expiration date of such Common
Warrants;
(5) the terms of any right of the Company to redeem such Common
Warrants;
(6) the terms of any right of the Company to accelerate the exercise
of such Common Warrants upon the occurrence of certain events;
(7) whether such Common Warrants will be sold with any other Offered
Securities and, if so, the amount and terms thereof;
(8) the date, if any, on and after which such Common Warrants and such
Offered Securities will be separately transferable;
(9) a discussion of the federal income tax considerations applicable
to such Common Warrants and Common Stock; and
(10) any other terms of such Common Warrants.
Common Warrant Certificates may be issued in registered or bearer form, or
both, as set forth in the Prospectus Supplement, and will be exchangeable for
new Common Warrant Certificates of different denominations. No service charge
will be made for any permitted transfer or exchange of Common Warrant
Certificates, but the Company may require payment of any tax or other
governmental charge payable in connection therewith. Common Warrants may be
exercised at the corporate trust office of the Common Warrant Agent or any other
office indicated in the Prospectus Supplement.
EXERCISE OF COMMON WARRANTS
Each Offered Common Warrant will entitle the holder thereof to purchase
such number of shares of Common Stock at the exercise price set forth in, or
calculable from, the Prospectus Supplement relating to such Offered Common
Warrants. After the close of business on the applicable expiration date,
unexercised Common Warrants will become void.
Offered Common Warrants may be exercised by payment to the Common Warrant
Agent of the exercise price and by delivery to the Common Warrant Agent of the
related Common Warrant Certificate, with the reverse side thereof properly
completed. Offered Common Warrants will be deemed to have been exercised upon
receipt of the exercise price, subject to the receipt by the Common Warrant
Agent, within five business days thereafter, of the Common Warrant Certificate
or Certificates evidencing such Offered Common Warrants. Upon receipt of such
payment and the properly completed Common Warrant Certificates at the corporate
trust office of the Common Warrant Agent or such other office acceptable to the
Common Warrant Agent, the Company will, as soon as practicable, deliver the
shares of Common Stock purchased upon such exercise. If fewer than all of the
Offered Common Warrants represented by any Common Warrant Certificate are
exercised, a new Common Warrant Certificate will be issued for the unexercised
Offered Common Warrants. The holder of an Offered Common Warrant will be
required to pay any tax or other governmental
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<PAGE> 45
charge that may be imposed in connection with any transfer involved in the
issuance of Common Stock purchased upon such exercise.
MODIFICATIONS
The Common Warrant Agreement and the terms of the Offered Common Warrants
may be modified or amended by the Company and the Common Warrant Agent, without
the consent of any holder, for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective or inconsistent provision
contained therein, or in any other manner that the Company deems necessary or
desirable and that will not materially and adversely affect the interests of the
holders of the Offered Common Warrants.
The Company and the Common Warrant Agent may also modify or amend the
Common Warrant Agreement and the terms of the Offered Common Warrants with the
consent of the holders of not less than a majority in number of the then
outstanding unexercised Common Warrants affected thereby; provided that no such
modification or amendment that accelerates the expiration date, increases the
exercise price, reduces the number of outstanding Common Warrants, the consent
of the holders of which is required for any such modification or amendment, or
otherwise materially and adversely affects the rights of the holders of the
Common Warrants may be made without the consent of each holder affected thereby.
COMMON WARRANT ADJUSTMENTS
The terms and conditions on which the exercise price of and/or the number
of shares of Common Stock covered by an Offered Common Warrant are subject to
adjustment will be set forth in the Common Warrant Agreement and the Prospectus
Supplement. Such terms will include provisions for adjusting the exercise price
and/or the number of shares of Common Stock covered by such Offered Common
Warrant; the events requiring such adjustment; the events upon which the Company
may, in lieu of making such adjustment, make proper provisions so that the
holder of such Offered Common Warrant, upon exercise thereof, would be treated
as if such holder had exercised such Common Warrant prior to the occurrence of
such events; and provisions affecting exercise in the event of certain events
affecting the Common Stock.
NO RIGHTS AS STOCKHOLDERS
Holders of Common Warrants are not entitled, by virtue of being such
holders, to vote, consent or receive notice as stockholders of the Company in
respect of any meeting of stockholders for the election of directors of the
Company or any other matter, or exercise any other rights whatsoever as
stockholders of the Company.
DESCRIPTION OF OUTSTANDING CAPITAL STOCK
The authorized capital stock of the Company consists of (i) 200,000,000
shares of Common Stock, $1.50 par value per share, (ii) 5,000,000 shares of
Preferred Stock, $0.01 par value per share, (iii) 442,352 shares of Series $4.75
Preferred Stock, without par value but with a stated value of $100 per share
(the "$4.75 Preferred Stock") and (iv) 2,000,000 shares of junior participating
preferred stock, par value $0.01 per share (the "Junior Preferred Stock").
On December 31, 1993, there were outstanding (i) 46,018,008 shares of
Commom Stock, (ii) employee stock options to purchase an aggregate of 3,883,370
shares of Common Stock and (iii) 235,101 shares of $4.75 Preferred Stock. In
addition, rights to purchase Junior Preferred Stock have been distributed to
holders of the Common Stock pursuant to the Rights Agreement, as further
described below. A maximum of 2,000,000 shares of Junior Preferred Stock is
currently authorized for issuance upon exercise of such rights. See "Rights
Plan" below.
The number of outstanding shares of Common Stock described above has not
been adjusted to account for the 2 for 1 stock split declared by the Company on
May 10, 1994 to the holders of record of the Common Stock on June 1, 1994. The
stock split will take effect on July 1, 1994.
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The following descriptions are summaries, and reference is made to the
detailed provisions of the following documents: (i) the Company's Certificate of
Incorporation; (ii) the Company's Bylaws; and (iii) the Rights Agreement, as
amended, between the Company and Bank One of Arizona, as Rights Agent (the
"Rights Agreement").
COMMON STOCK
Subject to the rights of the holders of any outstanding shares of Preferred
Stock, $4.75 Preferred Stock and Junior Preferred Stock, holders of Common Stock
are entitled to receive dividends when, as and if declared by the Board of
Directors out of funds legally available therefor.
Each holder of Common Stock is entitled to one vote for each share held on
all matters voted upon by the stockholders of the Company, including the
election of directors. The Common Stock does not have cumulative voting rights.
Election of directors is decided by the holders of a plurality of the shares
entitled to vote and present in person or by proxy at a meeting for the election
of directors.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, after the payment or provision for payment of the
debts and other liabilities of the Company and the preferential amounts to which
holders of the Company's Preferred Stock, $4.75 Preferred Stock and Junior
Preferred Stock are entitled (if any shares of Preferred Stock, $4.75 Preferred
Stock and Junior Preferred Stock are then outstanding), the holders of Common
Stock are entitled to share ratably in the remaining assets of the Company.
The outstanding shares of Common Stock are, and any shares of Common Stock
offered hereby upon issuance and payment therefor will be, fully paid and
non-assessable. The Common Stock has no preemptive or conversion rights and
there are no redemption or sinking fund provisions applicable thereto.
The Common Stock of the Company is listed on The New York Stock Exchange
and The Pacific Stock Exchange (symbol "DL"). The transfer agent and registrar
is the First National Bank of Boston.
$4.75 PREFERRED STOCK
Dividends are paid quarterly on the $4.75 Preferred Stock at an annual rate
of $4.75 per share on the fifteenth day of January, April, July and October in
each year when and if declared. Such dividends are cumulative, to the extent not
paid. In the event of any liquidation, dissolution or winding up of the Company,
the holders of the $4.75 Preferred Stock are entitled to receive an amount equal
to the accrued and unpaid dividends thereon plus, on involuntary liquidation,
$100 per share or, on voluntary liquidation, $101 per share before any
distribution may be made to holders of common or any other stock junior to the
$4.75 Preferred Stock.
Shares of the $4.75 Preferred Stock are redeemable at the option of the
Company at $101 per share plus accrued and unpaid dividends thereon computed to
the date of redemption. In the case of redemption of less than all the
outstanding $4.75 Preferred Stock, the shares to be redeemed will be selected by
lot in the manner prescribed by the Board. All shares redeemed will be cancelled
and will not be reissued as $4.75 Preferred Stock. In addition, the $4.75
Preferred Stock is entitled to the benefits of mandatory annual cumulative
sinking fund payments due September 1 of each year in an amount per share
sufficient to redeem 6,000 shares at par plus accrued and unpaid dividends.
Previously purchased shares of $4.75 Preferred Stock may be used to satisfy the
sinking fund requirement.
When, if ever, dividends on the $4.75 Preferred Stock shall be in arrears,
in whole or in part, as to each of six quarterly dividends, whether or not
consecutive, holders of the $4.75 Preferred Stock will have the exclusive right,
voting separately as a class at the next annual meeting of shareholders, and
annually thereafter, to elect two Directors of the Company in addition to those
elected by other classes of shareholders. Such right of election and the
existence of such additional directorships shall continue until such time as all
cumulative dividends in arrears have been paid in full. The holders of at least
10% of the $4.75 Preferred Stock may require that a special meeting of such
holders be called to elect such additional Directors if the foregoing arrearages
shall occur more than 90 days prior to the date fixed by the Bylaws for the next
annual meeting of
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shareholders. Except as described herein and as otherwise required by law, the
$4.75 Preferred Stock will have no voting rights.
The Company, without the approval of at least a majority of the then
outstanding $4.75 Preferred Stock, voting as a class, or the unanimous written
consent of such stock, may not create or issue any class or series of stock
ranking on a parity with the $4.75 Preferred Stock either as to dividends or
liquidation rights, or increase the authorized number of shares of any such
class or series. Also, the Company, without the approval of at least two-thirds
of the then outstanding $4.75 Preferred Stock, voting as a class, or the
unanimous written consent of such stock, may not
(a) amend, alter or repeal any of the provisions of its Certificate of
Incorporation so as to alter materially any existing provisions of the
$4.75 Preferred Stock,
(b) create or issue any class or series of stock ranking prior to the
$4.75 Preferred Stock either as to dividends or liquidation rights, or
increase the authorized number of shares of any such class or series of the
$4.75 Preferred Stock, or
(c) sell, lease or convey all or substantially all of the Company's
property or business, or voluntarily liquidate, merge or consolidate,
provided that no such vote or consent will be required for a consolidation
or merger of the Company if, after any such transaction, each holder
possesses an equivalent number of shares of the surviving corporation
having substantially the same terms and provisions as the $4.75 Preferred
Stock and the surviving corporation has no stock either authorized or
outstanding ranking prior to or on a parity with such shares.
No such approval or consent will be required for issuance either of senior
or parity stock for the purpose of redeeming or otherwise retiring the $4.75
Preferred Stock.
If and so long as the Company may be in default with respect to any
dividend or sinking fund payment on the $4.75 Preferred Stock, it may not pay
any dividends (other than dividends payable in junior stock) or make other
distributions on junior stock or acquire shares of such junior stock for a
consideration.
Holders of the $4.75 Preferred Stock will have no preemptive rights. The
$4.75 Preferred Stock is not liable for further calls or subject to assessment.
The $4.75 Preferred Stock is not entitled to conversion rights.
CERTAIN ANTITAKEOVER EFFECTS OF CERTAIN PROVISIONS OF THE CERTIFICATE OF
INCORPORATION AND BYLAWS
The Certificate of Incorporation and Bylaws contain certain provisions that
could make more difficult the acquisition of the Company by means of a tender
offer, a proxy contest or otherwise. The description set forth below is intended
as a summary only and is qualified in its entirety by reference to the forms of
the Certificate of Incorporation and Bylaws, which have been filed as an exhibit
to the registration statement of which this Prospectus is a part.
Classification of Board of Directors. The Certificate of Incorporation and
Bylaws of the Company provide that the Company's Board of Directors will be
divided into three classes of directors, with the classes to be as nearly equal
in number as possible. The term of office of one class of directors expires each
year in rotation so that one class is elected at each annual meeting of
shareholders for a full three-year term. The Bylaws provide for not less than
three nor more than seventeen directors which the Company would have if there
were no vacancies (the "Whole Board"). The Bylaws provide that a vacancy on the
Company's Board may be filled only by the affirmative vote of a majority of the
remaining directors, even though less than a quorum. The Certificate of
Incorporation further provides that a director may be removed only for cause and
only by affirmative vote of the holders of at least 80% of the voting power of
the then outstanding voting stock of the Company.
These provisions would preclude a third party from removing incumbent
directors and simultaneously gaining control of the Company's Board by filling
the vacancies created by removal with its own nominees, unless such third party
controls at least 80% of the combined voting power of the voting stock of the
Company. Under the classified board provisions described above, it would take at
least two elections of directors for any
26
<PAGE> 48
individual or group to gain control of the Company's Board. Accordingly, these
provisions would tend to deter unfriendly takeovers.
Stockholder Action. The Certificate of Incorporation and the Bylaws also
provide that stockholder action can be taken only at an annual or special
meeting of stockholders and prohibit stockholder action by written consent in
lieu of a meeting. The Bylaws provide that special meetings of stockholders can
be called only by the Chairman of the Board of Directors or by the Company's
Board of Directors pursuant to a resolution adopted by a majority of the Whole
Board. Stockholders are not permitted to call a special meeting or to require
that the Company's Board of Directors call a special meeting of stockholders.
Advance Notice Provisions for Stockholder Nominations and Stockholder
Proposals. The Bylaws establish an advance notice procedure for stockholders to
make nominations of candidates for election as directors, or to bring other
business before an annual meeting of stockholders of the Company (the
"Stockholder Notice Procedure").
The Stockholder Notice Procedure provides that only persons who are
nominated by, or at the direction of, the Company Board, or by a stockholder who
has given timely written notice to the Secretary of the Company prior to the
meeting at which directors are to be elected, will be eligible for election as
directors of the Company. The Stockholder Notice Procedure provides that at an
annual meeting only such business may be conducted as has been brought before
the meeting by, or at the direction of, the Chairman or the Company's Board or
by a stockholder who has given timely written notice to the Secretary of the
Company of such stockholder's intention to bring such business before such
meeting.
Under the Stockholder Notice Procedure, for notice of stockholder
nominations to be made at an annual meeting to be timely, such notice must be
received by the Company not less than 70 days nor more than 90 days prior to the
first anniversary of the previous year's annual meeting (or if the date of the
annual meeting is advanced by more than 20 days, or delayed by more than 70
days, from such anniversary date, not earlier than the 90th day prior to such
meeting and not later than the later of (x) the 70th day prior to such meeting
and (y) the 10th day after public announcement of the date of such meeting is
first made). Notwithstanding the foregoing, in the event that the number of
directors to be elected is increased and there is no public announcement made by
the Company naming all of the nominees for director or specifying the size of
the increased Board of Directors at least 80 days prior to the first anniversary
of the preceding year's annual meeting, a stockholder's notice will be timely,
but only with respect to nominees for any new positions created by such
increase, if it is received by the Company not later than the 10th day after
such public announcement is first made by the Company. Under the Stockholder
Notice Procedure, for notice of a stockholder nomination to be made at a special
meeting at which directors are to be elected to be timely, such notice must be
received by the Company not earlier than the 90th day before such meeting and
not later than the later of (x) the 70th day prior to such meeting and (y) the
10th day after public announcement of the date of such meeting is first made.
In addition, under the Stockholder Notice Procedure, a stockholder's notice
to the Company proposing to nominate a person for election as a director must
contain certain specified information. If the Chairman of the Board or other
officer presiding at a meeting determines that a person was not nominated, or
other business was not brought before the meeting, in accordance with the
Stockholder Notice Procedure, such person will not be eligible for election as a
director, or such business will not be conducted at such meeting, as the case
may be.
Merger/Sale of Assets. The Certificate of Incorporation of the Company
provides that certain "business combinations" (as defined) must be approved by
the holders of at least 66 2/3% of the voting power of the shares not owned by
an "interested shareholder" (as defined), unless the business combinations are
approved by the "Continuing Directors" or meet certain requirements regarding
price and procedure.
Delaware General Corporation Law Section 203. The Company is subject to
the provisions of Section 203 of the General Corporation law of the State of
Delaware ("Delaware sec. 203"), the "business combination" statute. In general,
the law prohibits a public Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the
27
<PAGE> 49
person became an interested stockholder, unless (i) prior to such date, the
board of directors of the corporation approved either the business combination
or the transaction that resulted in the stockholder becoming an interested
stockholder, (ii) upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding certain shares described in Delaware sec. 203),
or (iii) on or subsequent to such date, the business combination is approved by
the board of directors of the corporation and authorized at an annual or special
meeting of stockholders and by the affirmative vote of at least two-thirds of
the outstanding voting stock that is not owned by the "interested stockholder".
"Business combination" is defined to include mergers, asset sales and certain
other transactions resulting in a financial benefit to a stockholder. An
"interested stockholder" is defined generally as a person who, together with
affiliates and associates, owns (or, within the prior three years, did own) 15%
or more of a corporation's voting stock. The Certificate of Incorporation does
not exclude the Company from the restrictions imposed under sec. 203 of the
Delaware law. The statute could prohibit or delay the accomplishment of mergers
or other takeover or change in control attempts with respect to the Company and,
accordingly, may discourage attempts to acquire the Company.
RIGHTS PLAN
Pursuant to the Company's Rights Agreement (as adjusted to account for the
2 for 1 stock split announced by the Company on May 10, 1994), attached to each
share of Common Stock is one right (a "Right") that, when exercisable, entitles
the holder of the Right to purchase one two-hundredth of a share of Junior
Preferred Stock at a purchase price (the "Purchase Price") of $55, subject to
adjustment. The number of Rights attached to each share of Common Stock is
subject to adjustment. In certain events (such as a person or group becoming the
owner of 20% or more of the Common Stock or a merger or other transaction with
an entity controlled by such an acquiring person or group), exercise of the
Rights would entitle the holders thereof (other than the acquiring person or
group) to receive Common Stock or common stock of a surviving corporation, or
cash, property or other securities, with a market value equal to twice the
Purchase Price. Accordingly, exercise of the Rights may cause substantial
dilution to a person who attempts to acquire the Company. The Rights
automatically attach to each outstanding share of Common Stock, including any
shares offered pursuant to the applicable Prospectus Supplement. There is no
monetary value presently assigned to the Rights, and they will not trade
separately from the Common Stock unless and until they become exercisable. The
Rights, which expire on February 28, 2002, may be redeemed at a price of $.025
per Right at any time until any individual, corporation or other entity
(excluding the Company or its affiliates) has acquired 20% or more of the
outstanding Common Stock, except as otherwise provided in the Rights Agreement.
The Rights Agreement may have certain antitakeover effects, although it is not
intended to preclude any acquisition or business combination that is at a fair
price and otherwise in the best interests of the Company and its stockholders as
determined by the Board of Directors. However, a stockholder could potentially
disagree with the Board's determination of what constitutes a fair price or the
best interests of the Company and its stockholders.
Shares of Junior Preferred Stock purchasable upon exercise of the Rights
will not be redeemable. Each share of Junior Preferred Stock will be entitled to
a minimum preferential quarterly dividend payment of one dollar per share but
will be entitled to an aggregate dividend equal to 200 times the dividend
declared per share of Common Stock. In the event of liquidation, the holders of
the Junior Preferred Stock will be entitled to a minimum preferential
liquidation payment of $200 per share but will be entitled to an aggregate
payment equal to 200 times the payment made per share of Common Stock. Each
share of Junior Preferred Stock will have 200 votes, voting together with the
Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which Common Stock is exchanged, each share of Junior Preferred
Stock will be entitled to receive an amount equal to 200 times the amount
received per share of Common Stock. These rights are protected by customary
antidilution provisions. Because of the nature of the dividend, liquidation and
voting rights of Junior Preferred Stock, the value of one two-hundredth interest
in a share of Junior Preferred Stock purchasable upon exercise of each Right
should approximate the value of one share of Common Stock.
28
<PAGE> 50
PLAN OF DISTRIBUTION
The Company may sell the Securities (a) directly to purchasers, (b) through
agents, (c) to dealers as principals, and (d) through underwriters.
Offers to purchase Securities may be solicited directly by the Company or
by agents designated by the Company from time to time. Any such agent, who may
be deemed to be an underwriter as that term is defined in the Securities Act of
1933, involved in the offer or sale of the Securities is named, and any
commissions payable by the Company to such agent will be set forth, in the
Prospectus Supplement relating to the Securities. Unless otherwise indicated in
such Prospectus Supplement, any such agent will use its reasonable efforts to
solicit offers to purchase Securities for the period of its appointment.
If a dealer is utilized in the sale of the Securities, the Company will
sell such Securities to the dealer as principal. The dealer may then resell
Securities to the public at varying prices to be determined by such dealer at
the time of resale.
If an underwriter or underwriters are utilized in the sale of the
Securities, the Company will enter into an underwriting agreement with such
underwriters at the time of sale to them. The names of the underwriters and the
terms of the transaction will be set forth in the Prospectus Supplement, which
will be used by the underwriters to make resales of the Securities. Unless
otherwise indicated in the Prospectus Supplement relating to the Securities, the
obligations of the underwriters to purchase the Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all such Securities if any are purchased.
Agents, dealers, or underwriters and their controlling persons may be
entitled under agreements which may be entered into with the Company to
indemnification by the Company against certain civil liabilities, including
liabilities under the Securities Act of 1933, or to contribution with respect to
payments which the agents, dealers or underwriters may be required to make in
respect thereof, and may be customers of, engage in transactions with or perform
services for the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or agents to solicit offers by certain institutions to purchase
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts providing for
amounts, payment and delivery as described in the Prospectus Supplement.
Institutions with whom the contracts may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but shall in all cases be
subject to the approval of the Company. A commission described in the Prospectus
Supplement will be paid to underwriters and agents soliciting purchases of
Securities pursuant to contracts accepted by the Company. Contracts will not be
subject to any conditions except that (a) the purchase by an institution of the
Securities covered by its contract shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject and (b) the Company shall have sold and delivered to any
underwriters named in the Prospectus Supplement that portion of the issue of
Securities as is set forth therein. The underwriters and agents will not have
any responsibility in respect of the validity or the performance of the
contracts.
Unless otherwise indicated in the Prospectus Supplement relating to the
Securities, the Securities will not be listed on any securities exchange.
The place and time of delivery for the Securities will be set forth in the
Prospectus Supplement.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1993 have been audited by
Deloitte & Touche, independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
29
<PAGE> 51
LEGAL OPINIONS
The legality of the Securities will be passed upon for the Company by L.
Gene Lemon, Esq., Vice President and General Counsel of the Company, and for the
underwriters, if any, by Shearman & Sterling, New York, New York. As of May 31,
1994, Mr. Lemon held approximately 49,000 shares of Common Stock of the Company
and options to acquire approximately 126,000 of such shares.
30
<PAGE> 52
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS
SUPPLEMENT OR THE PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY AGENT. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS ARE NOT AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITY IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
________________________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
Description Of Notes................. S-2
Certain United States Federal Income
Tax Consequences................... S-14
Plan Of Distribution................. S-18
Legal Opinion........................ S-19
PROSPECTUS
Available Information................ 2
Incorporation By Reference........... 2
The Company.......................... 3
Ratio Of Earnings To Fixed Charges
and Ratio of Earnings to Fixed
Charges and Preferred Stock
Dividends.......................... 3
Use Of Proceeds...................... 4
Description Of Debt Securities....... 4
Description Of Debt Warrants......... 14
Description of Preferred Stock....... 16
Description of Depositary Shares..... 19
Description of Common Stock.......... 22
Description of Common Warrants....... 22
Description of Outstanding Capital
Stock.............................. 24
Plan of Distribution................. 29
Experts.............................. 29
Legal Opinions....................... 30
</TABLE>
$500,000,000
THE DIAL CORP
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
SALOMON BROTHERS INC
CITICORP SECURITIES, INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
PROSPECTUS SUPPLEMENT
DATED , 1994
<PAGE> 53
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
All expenses other than the Securities and Exchange Commission registration
fee are estimated.
<TABLE>
<S> <C>
SEC registration fee...................................................... $ 172,414
Accountants' fees and expenses............................................ 75,000
Legal fees and expenses................................................... 50,000
Blue Sky fees and expenses................................................ 17,500
Printing and engraving expenses........................................... 16,000
Rating agencies' fees..................................................... 150,000
Trustee's and registrar's fees and expenses............................... 15,000
Miscellaneous............................................................. 4,086
---------
Total........................................................... $ 500,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Bylaws of the Company (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, officer or
employee of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other 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, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, will be
indemnified and held harmless by the Company to the fullest extent authorized by
Delaware law as the same exists or may in the future be amended (but, 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, without limitation, attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred by
such person in connection therewith and such indemnification will continue as to
a person who has ceased to be a director, officer, employee or agent and will
inure to the benefit of his or her heirs, executors and administrators; however,
except as described in the 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 of Directors of the Company.
Pursuant to the Bylaws, if a claim described in the preceding paragraph is
not paid in full by the Company within thirty days after a written claim 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 also be entitled to be paid
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 standards of conduct
which make it permissible under the General Corporation Law of the State of
Delaware (the "Delaware Law") for the Company to indemnify the claimant for the
amount claimed, but the burden of proving such defense will be on the Company.
The Bylaws provide that, following any "change of control" of the Company of the
type required to be reported under Item I of Form 8-K promulgated under the
Securities Exchange Act of 1934, any such determination will be made by
independent legal counsel selected by the claimant, approved by the Board of
Directors of the Company (the "Board") (which approval may not be unreasonably
withheld) and retained by the Board on behalf of the Company. Neither the
failure of the
II-1
<PAGE> 54
Company (including the Board, 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 standard of conduct set forth in the Delaware Law, nor an
actual determination by the Company (including the Board, 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.
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 corporation, partnership, joint venture,
trust or other 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 Delaware Law. 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 the expenses incurred in defending any Proceeding in advance
of its final disposition, to any 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, officers and employees 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 the expenses
incurred in defending any such Proceeding in advance of its final disposition,
except that if Delaware law 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.
The Company has entered into indemnification agreements with each of the
Company's directors. The indemnification agreements, among other things, require
the Company to indemnify the officers and directors 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 under the Company's directors' liability insurance. Although
the form of indemnification agreement offers substantially the same scope of
coverage afforded by provisions in the Certificate of Incorporation and the
Bylaws, it provides greater assurance to directors that indemnification will be
available, because, as a contract, it cannot be modified unilaterally in the
future by the Board or by the stockholders to eliminate the rights it provides,
an action that is possible with respect to the relevant provisions of the
Bylaws, at least as to prospective elimination of such rights. The Bylaws
provide that any amendment or repeal of the Bylaw provisions regarding this
indemnification will not adversely affect any right or protection of this
indemnification under the Bylaws in respect of any act or omission occurring
prior to such amendment or repeal.
II-2
<PAGE> 55
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ----------------------------------------------------------------------------------
<C> <S>
1.1(a) Form of Underwriting Agreement for Debt Securities and Warrants to Purchase Debt
Securities.
1.1(b) Form of Underwriting Agreement for Equity Securities and Warrants to Purchase
Common Stock.
1.2 Form of Selling Agency Agreement (with Medium-Term Note Administrative Procedures
annexed thereto).
4.1 Form of Senior Indenture, incorporated herein by reference to Exhibit 4.1 of the
Registration Statement on Form S-3 (Registration No. 33-61092) filed on April 15,
1993.
4.2 Form of Senior Note, incorporated herein by reference to Exhibit 4.2 of the
Registration Statement on Form S-3 (Registration No. 33-61092) filed on April 15,
1993.
4.3 Form of Fixed Rate Medium-Term Note, incorporated herein by reference to Exhibit
4.3 of the Registration Statement on Form S-3 (Registration No. 33-61092) filed on
April 15, 1993.
4.4 Form of Floating Rate Medium-Term Note, incorporated herein by reference to
Exhibit 4.4 of the Registration Statement on Form S-3 (Registration No. 33-61092)
filed on April 15, 1993.
4.5 Restated Certificate of Incorporation of the Company, incorporated herein by
reference to Exhibit 3(A) to Form 8-B filed on February 24, 1992.
4.6 Bylaws of the Company, incorporated herein by reference to Exhibit 3(B) to Form
8-B filed on February 24, 1992.
4.7 Form of Subordinated Indenture among The Dial Corp and Continental Bank, N.A.,
Trustee.
4.8 Form of Subordinated Debt Securities.
4.9(a) Form of Warrant Agreement for Debt Securities.
4.9(b) Form of Warrant Agreement for Equity Securities.
4.10 Form of Deposit Agreement (including Form of Depositary Receipt).
4.11 Rights Agreement, dated as of February 15, 1992, between the Company and Bank One
of Arizona, N.A. (formerly The Valley National Bank of Arizona), as Rights Agent,
including as Exhibit B thereto the form of Rights Certificate, incorporated herein
by reference to Exhibit 4(C) to Form 8-B filed on February 24, 1992.
5 Opinion of L. Gene Lemon, Esq. regarding the legality of the Securities.
8 Tax opinion of Shearman & Sterling.
12.1 Computation of ratio of earnings to fixed charges.
12.2 Computation of ratio of earnings to fixed charges and preferred stock dividends.
23.1 Consent of Deloitte & Touche (included at page II-7).
23.2 Consent of L. Gene Lemon, Esq. (included in Exhibit 5).
23.3 Consent of Shearman & Sterling (included in Exhibit 8).
24 Powers of Attorney of directors and certain officers of the registrant (included
at page II-6).
25.1 Statement of Eligibility on Form T-I of The Chase Manhattan Bank, N.A., as trustee
under the Senior Indenture, incorporated herein by reference to Exhibit 25 of the
Registration Statement on Form S-3 (Registration No. 33-61092) filed on April 15,
1993.
25.2 Statement of Eligibility on Form T-1 of Continental Bank, National Association, as
trustee under the Subordinated Indenture.
</TABLE>
II-3
<PAGE> 56
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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 the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
(3) 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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the Securities
Act of 1933, each post effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 15 above,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant 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 registrant 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 of 1933 and will be governed by the final adjudication of such
issue.
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<PAGE> 57
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, and State of Arizona, on the 27th day of
June, 1994.
The Dial Corp
By: /s/ JOHN W. TEETS
______________________________
John W. Teets
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
Richard C. Stephan, as his or her attorney-in-fact, with full power of
substitution and resubstitution, to sign and file on his or her behalf
individually and in each such capacity stated below any and all amendments and
post-effective amendments to this Registration Statement, as fully as such
person could do in person, hereby verifying and confirming all that said
attorney-in-fact, or his 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 and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
____________ _______ ______
<C> <S> <C>
Principal Executive Officer
/s/ JOHN W. TEETS Director; Chairman, President and June 27, 1994
_____________________________ Chief Executive Officer
John W. Teets
Principal Financial Officer
/s/ F. EDWARD LAKE Vice President -- Finance June 27, 1994
_____________________________
F. Edward Lake
Principal Accounting Officer
/s/ RICHARD C. STEPHAN Vice President -- Controller June 27, 1994
______________________________
Richard C. Stephan
Directors
/s/ JOE T. FORD June 27, 1994
_______________________________
Joe T. Ford
/s/ THOMAS L. GOSSAGE June 22, 1994
_______________________________
Thomas L. Gossage
</TABLE>
II-5
<PAGE> 58
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
____________ _______ _____
<C> <S> <C>
/s/ DONALD E. GUINN June 27, 1994
_______________________________
Donald E. Guinn
/s/ JESS HAY June 27, 1994
_______________________________
Jess Hay
/s/ JUDITH K. HOFER June 21, 1994
_______________________________
Judith K. Hofer
/s/ JACK F. REICHERT June 27, 1994
_______________________________
Jack F. Reichert
/s/ LINDA JOHNSON RICE June 27, 1994
_______________________________
Linda Johnson Rice
/s/ DENNIS C. STANFILL June 27, 1994
________________________________
Dennis C. Stanfill
/s/ A. THOMAS YOUNG June 21, 1994
________________________________
A. Thomas Young
</TABLE>
II-6
<PAGE> 59
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of The Dial Corp on Form S-3 of our reports dated February 25, 1994, appearing
in and incorporated by reference in the Annual Report on Form 10-K of The Dial
Corp for the year ended December 31, 1993, and to reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE
Phoenix, Arizona
June 22, 1994
II-7
<PAGE> 60
REGISTRATION NO.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
------------------------
EXHIBITS
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE DIAL CORP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
================================================================================
<PAGE> 61
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------------------------------------------------------------------
<C> <S>
1.1(a) Form of Underwriting Agreement for Debt Securities and Warrants to Purchase Debt
Securities.
1.1(b) Form of Underwriting Agreement for Equity Securities and Warrants to Purchase
Common Stock.
1.2 Form of Selling Agency Agreement (with Medium-Term Note Administrative Procedures
annexed thereto).
4.1 Form of Senior Indenture, incorporated herein by reference to Exhibit 4.1 of the
Registration Statement on Form S-3 (Registration No. 33-61092) filed on April 15,
1993.
4.2 Form of Senior Note, incorporated herein by reference to Exhibit 4.2 of the
Registration Statement on Form S-3 (Registration No. 33-61092) filed on April 15,
1993.
4.3 Form of Fixed Rate Medium-Term Note, incorporated herein by reference to Exhibit
4.3 of the Registration Statement on Form S-3 (Registration No. 33-61092) filed on
April 15, 1993.
4.4 Form of Floating Rate Medium-Term Note, incorporated herein by reference to
Exhibit 4.4 of the Registration Statement on Form S-3 (Registration No. 33-61092)
filed on April 15, 1993.
4.5 Restated Certificate of Incorporation of the Company, incorporated herein by
reference to Exhibit 3(A) to Form 8-B filed on February 24, 1992.
4.6 Bylaws of the Company, incorporated herein by reference to Exhibit 3(B) to Form
8-B filed on February 24, 1992.
4.7 Form of Subordinated Indenture among The Dial Corp and Continental Bank, N.A.,
Trustee.
4.8 Form of Subordinated Debt Securities.
4.9(a) Form of Warrant Agreement for Debt Securities.
4.9(b) Form of Warrant Agreement for Equity Securities.
4.10 Form of Deposit Agreement (including Form of Depositary Receipt).
4.11 Rights Agreement, dated as of February 15, 1992, between the Company and Bank One
of Arizona, N.A. (formerly The Valley National Bank of Arizona), as Rights Agent,
including as Exhibit B thereto the form of Rights Certificate, incorporated herein
by reference to Exhibit 4(C) to Form 8-B filed on February 24, 1992.
5 Opinion of L. Gene Lemon, Esq. regarding the legality of the Securities.
8 Tax opinion of Shearman & Sterling.
12.1 Computation of ratio of earnings to fixed charges.
12.2 Computation of ratio of earnings to fixed charges and preferred stock dividends.
23.1 Consent of Deloitte & Touche (included at page II-7).
23.2 Consent of L. Gene Lemon, Esq. (included in Exhibit 5).
23.3 Consent of Shearman & Sterling (included in Exhibit 8).
24 Powers of Attorney of directors and certain officers of the registrant (included
at page II-6).
25.1 Statement of Eligibility on Form T-I of The Chase Manhattan Bank, N.A., as trustee
under the Senior Indenture, incorporated herein by reference to Exhibit 25 of the
Registration Statement on Form S-3 (Registration No. 33-61092) filed on April 15,
1993.
25.2 Statement of Eligibility on Form T-1 of Continental Bank, National Association, as
trustee under the Subordinated Indenture.
</TABLE>
<PAGE> 1
S & S DRAFT
6/24/94
EXHIBIT 1.1(a)
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
________________________________________________________________________________
THE DIAL CORP,
Issuer
[Convertible] [Subordinated] Debt Securities
and
Warrants to Purchase [Convertibel][Subordinated] Debt Securities
UNDERWRITING AGREEMENT
______________________
DATED: ____________,19__
________________________________________________________________________________
<PAGE> 2
THE DIAL CORP
(a Delaware corporation)
[Convertible] [Subordinated] Debt Securities and
Warrants to Purchase [Convertible] [Subordinated] Debt Securities
UNDERWRITING AGREEMENT
______________________
___________, 19__
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II
hereto
Dear Sirs:
The Dial Corp, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II (the "Underwriters"),
for whom you (the "Representatives") are acting as representatives, the
following securities which may be sold either separately or together as
specified in Schedule I hereto (the "Offered Securities"): (1) certain of the
Company's senior debt securities (the "Senior Securities") or its subordinated
debt securities (the "Subordinated Securities"; together with Senior
Securities, the "Debt Securities") or both and (2) warrants (the "Warrants") to
purchase Debt Securities (the "Underlying Debt Securities"), such sale of
Offered Securities to be on the terms and conditions stated herein and in
Schedule II.
The [Senior] [Subordinated] Securities will be issued under
an indenture (the "Indenture") dated as of ________, 199__, between the Company
and [The Chase Manhattan Bank, N.A.] [_____________], as trustee (the
"Trustee"). The Warrants will be issued under one or more warrant agreements
(each of which is sometimes referred to
<PAGE> 3
2
as the "Warrant Agreement") between the Company and _____________, as Warrant
Agent (the "Warrant Agent"), as specified in Schedule __. If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule
I hereto, then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
The Subordinated Securities and the Underlying Debt
Securities, if any, may be convertible (collectively, the "Convertible Debt
Securities") into shares of common stock, par value $1.50 per share, of the
Company (the "Common Stock"), as specified in Schedule I. The shares of Common
Stock issuable upon conversion of any Convertible Debt Securities are referred
to herein as the "Shares". [If, at the time of the issuance of any such
Shares, the Rights Agreement (as defined below) is in effect, each such Share
will include, to the extent provided for in the Rights Agreement, one common
stock purchase right (such rights being hereinafter referred to as the
"Rights") entitling the holder thereof to purchase, under certain
circumstances, Common Stock or other property. The Rights are to be issued
pursuant to the Rights Agreement dated as of February 15, 1992, between the
Company and The Valley National Bank of Arizona, as rights agent (such
agreement or a successor thereto, as the same may be amended, being referred to
as the "Rights Agreement").]
Any Debt Securities and Warrants to be sold pursuant to this
Agreement, as specified in Schedule I, are referred to herein separately as the
"Offered Debt Securities" and the "Offered Warrants", respectively, and
collectively as the "Offered Securities". The Offered Securities, the
Underlying Debt Securities, if any, and the Shares, if any, are collectively
referred to as the "Securities".
1. Representations and Warranties.
_______________________________
The Company represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Offered Securities is a
Delayed Offering (as specified in Schedule I hereto), paragraph (i)
below is applicable, and, if the offering of the Offered Securities is
a Non-Delayed Offering (as so specified), paragraph (ii) below is
applicable.
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (the file number
of which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Offered Securities. The
Company may have filed one or more amendments thereto, and
may have used a preliminary
<PAGE> 4
3
Final Prospectus, each of which has previously been furnished
to you. Such registration statement, as so amended, has
become effective and no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or
threatened by the Commission. The offering of the Offered
Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect
to the Offered Securities and the offering thereof required
by the Act and the rules thereunder to be included in the
Final Prospectus, the Basic Prospectus includes all such
information required by the Act and the rules thereunder to
be included therein as of the Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus
included in such registration statement relating to the
Offered Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
information with respect to the Offered Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a
basic prospectus, for registration under the Act of the
offering and sale of the Offered Securities. The Company may
have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective and no stop order suspending
the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted
or threatened by the Commission. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Offered Securities in accordance with Rules
430A and 424(b)(1) or (4), or (y) prior to the effectiveness
of such registration statement, an amendment to such
registration statement, including the form of final
prospectus supplement. In the case of clause (x), the
Company has included in such registration statement, as
amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules
thereunder to be
<PAGE> 5
4
included in the Final Prospectus with respect to the Offered
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Offered Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement
did and will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the
Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934 (the "Exchange Act") and the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the respective
rules thereunder; on the Effective Date, the Registration Statement
did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date, the Indenture did and will
comply in all material respects with the requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date,
the Final Prospectus, if not filed pursuant to Rule 424(b), did not
and will not, and, on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-l) of the Trustee under the
Trust Indenture Act or (ii) the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Final Prospectus (or any supplement
thereto).
<PAGE> 6
5
(c) The Company has complied and will comply with all
the provisions of Florida H.B. 1771, codified as Section 517.075 of
the Florida statutes, and all regulations promulgated thereunder
relating to issuers doing business in Cuba.
(d) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a)
above contained in the Registration Statement at the Effective Date
including, in the case of a Non-Delayed Offering, any Preliminary
Final Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Offered Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Final Prospectus" shall
mean the prospectus supplement relating to the Offered Securities that
is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Offered
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective), and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. "Rule 430A Information" means information
with respect to the Offered Securities and the offering thereof
permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the
<PAGE> 7
6
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration
statement, with the result that, pursuant to Rules 415 and 430A, all
information (other than Rule 430A Information) with respect to the
securities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an
offering of securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration statement, with
the result that only information required pursuant to Rule 415 need be
included in such registration statement at the effective date thereof
with respect to the securities so offered. Whether the offering of
the Offered Securities is a Non-Delayed Offering or a Delayed Offering
shall be set forth in Schedule I hereto.
2. Purchase and Sale.
__________________
Subject to the terms and conditions and in reliance upon the representations
and warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Offered Debt Securities or the number of
Offered Warrants, or both, set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides for the sale
of Offered Securities pursuant to delayed delivery arrangements, the
respective principal amounts of Offered Debt Securities or number of Offered
Warrants to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities" and Offered
Securities to be purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Offered Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the Closing Date,
the percentage set forth in Schedule I hereto of the principal amount of the
Offered Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery
<PAGE> 8
7
Contract must be for not less than the minimum principal amount of Offered Debt
Securities or the minimum number of Offered Warrants, or both, set forth in
Schedule I hereto and the aggregate principal amount of Contract Securities may
not exceed the maximum aggregate principal amount of Offered Debt Securities or
the minimum number of Offered Warrants set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Offered
Debt Securities or the number of Offered Warrants, or both, to be purchased by
each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total principal amount or
number, as applicable, of Contract Securities as the principal amount of
Offered Debt Securities or the number of Offered Warrants set forth opposite
the name of such Underwriter bears to the aggregate principal amount or number,
or both (as applicable), set forth in Schedule II hereto, except to the extent
that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Offered Debt Securities or the number of Offered
Warrants to be purchased by all Underwriters shall be the aggregate principal
amount or number, or both (as applicable), set forth in Schedule II hereto less
the aggregate principal amount or number, or both (as applicable), of Contract
Securities.
3. Delivery and Payment.
_____________________
Delivery of and payment for the Underwriters' Securities shall be made on the
date and at the time specified in Schedule I hereto (or such later date not
later than five business days after such specified date as the Representatives
shall designate) which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Underwriters' Securities being herein
called the "Closing Date"). Delivery of the Underwriters' Securities shall
be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on or by a New York
Clearing House bank and payable in next day funds. Delivery of the
Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Offered Securities shall be
made at the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
<PAGE> 9
8
4. Agreements.
___________
The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Offered Securities, the Company will not file
any amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Offered Securities, any amendment to the Registration Statement shall
have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (vi) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its reasonable efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect
such compliance.
<PAGE> 10
9
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the business date set forth on Schedule I
hereto, the Company will not, without the consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the Offered
Securities and the Underlying Debt Securities or any commercial paper
in the ordinary course of its business).
(g) In the event that the Securities include Shares, the
Company will reserve and keep available at all times, free of
preemptive rights, shares of Common Stock for the purpose of enabling
the Company to satisfy any obligations to issue the Shares issuable
upon conversion of any Securities.
5. Conditions to the Obligations of the Underwriters.
__________________________________________________
The obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York
<PAGE> 11
10
City time, on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 PM New York City
time on such date, or (ii) 12:00 Noon on the business day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the
Representatives the opinion of L. Gene Lemon, Vice President and
General Counsel for the Company, dated the Closing Date, to the effect
that:
(i) each of the Company and the Subsidiaries
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus,
and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases
material properties or conducts material business;
(ii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity
capitalization is as set forth in the Final Prospectus; the
Securities conform to the description thereof contained in
the Final Prospectus; and, if the Securities are to be listed
on any securities exchange, authorization therefor has been
given, subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting
documents with respect to the Securities with such securities
exchange and such counsel has no reason to believe
that the Securities will
<PAGE> 12
11
not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iv) [To be included only if the Underwriters
are purchasing Offered Debt Securities.] the Indenture has
been duly authorized, executed and delivered, has been duly
qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in
effect); and the Offered Debt Securities have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in
the case of any Contract Securities, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(v) [To be included only if the Underwriters
are purchasing Offered Warrants.] (A) the Warrant Agreement
has been duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and
delivery by the Warrant Agent, constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect); and the
Offered Warrants have been duly executed and issued in
accordance with the provisions of the Warrant Agreement and
delivered to and paid for by the Underwriters pursuant to
this Agreement, in the case of the Underwriters' Securities,
or by the purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of Contract Securities, will
constitute legal, valid and binding obligations of the
Company, entitled to the benefits of the Warrant Agreement;
and
(B) such Offered Warrants have been duly
authorized by the Company and, assuming that the Offered
Warrants have been duly countersigned by the Warrant Agent in
the manner provided for in its certificate delivered to you
at the Closing Time, such Offered Warrants have been duly
executed, issued and delivered by the Company and, when paid
for in accordance with this Agreement [and the Delayed
Delivery Contracts], will constitute valid and binding
obligations of the Company in accordance with their terms,
except as enforcement thereof may be limited
<PAGE> 13
12
by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and
(C) the Underlying Debt Securities have been
duly authorized by the Company and, assuming that such
Underlying Debt Securities have been duly executed,
authenticated, issued and delivered upon exercise of the
Offered Warrants in accordance therewith and with the terms
of the Designated Warrant Agreement and the Designated
Indenture, such Underlying Debt Securities will constitute
valid and binding obligations of the Company, entitled to the
benefits of the Designated Indenture and enforceable against
the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity
or at law);
(vi) [To be included only if the Offered
Securities include Convertible Debt Securities or Offered
Warrants to purchase Convertible Debt Securities.] (A) such
Convertible Debt Securities will be convertible into Shares
in accordance with the terms of the Indenture. Such Shares
have been duly authorized and validly reserved for issuance
by the Company and, when issued and delivered in accordance
with the terms of the Indenture, such Shares will be validly
issued, fully paid and nonassessable. All corporate action
required to be taken for the authorization, issuance and
delivery of such Shares has been validly taken. The issuance
of such Convertible Debt Securities is not, and the issuance
of such Shares upon conversion thereof will not be, subject
to the preemptive rights of any stockholder of the Company;
and
(B) if the Rights Agreement is in effect at the
time of the issuance of such Shares, the Rights Agreement has
been duly authorized, executed and delivered by the Company;
the Rights have been duly authorized by the Company and, when
issued upon issuance of such Shares, will be validly issued;
all corporate action required to be taken for the
authorization, issuance and delivery of such Rights has been
validly taken; the issuance of such Rights upon issuance of
such Shares is not, and the issuance of such shares of Common
Stock upon exercise of such Rights will not be, subject to
any preemptive rights of any stockholder of the
<PAGE> 14
13
Company; and the Rights Agreement conforms in all material
respects as to legal matters to the description thereof
contained in the Prospectus;
(vii) each of the Securities, the Indenture and
any Warrant Agreement conforms in all material respect as to
legal matters to the descriptions thereof contained in the
Prospectus;
(viii) to the best knowledge of such counsel,
there is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body,
or any arbitrator involving the Company or any of its
subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in
the Final Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(ix) the Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than
the financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective
rules thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Final Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading;
(x) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered
by the Company;
<PAGE> 15
14
(xi) no consent, approval, authorization or
order of any court or governmental agency or body is required
for the consummation of the transactions contemplated herein
or in any Delayed Delivery Contracts, except such as have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Offered Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained;
(xii) neither the issue and sale of the Offered
Securities, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the
terms hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which
the Company or any of its subsidiaries is a party or bound,
or any judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or
any of its subsidiaries; and
(xiii) no holders of securities of the Company
have rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the United States, to the extent deemed proper
and specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Representatives shall have received from
Shearman & Sterling, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Offered Securities, the Indenture, the Warrant Agreement,
[the Rights Agreement,] any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
<PAGE> 16
15
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplement to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto) there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Deloitte & Touche shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives)
dated as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying
<PAGE> 17
16
out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading
of the minutes of the meetings of the stockholders, directors
and executive, audit, compensation and nominating committee
of the Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus do
not comply in form in all material respects with
applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period
subsequent to the date of the most recent financial
statements (other than any capsule information),
audited or unaudited, in or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company
or decreases in working capital of the Company and
its subsidiaries as compared with the amounts shown
on the most recent consolidated balance sheet
included or incorporated in the Registration
Statement and the Final Prospectus, or for the
period from the date of the most recent financial
statements included or incorporated in the
Registration Statement and the Final Prospectus to
such specified date there were any decreases, as
compared with the corresponding period in the
preceding year in net revenues or
income before income taxes or in total or per share
amounts of net income of the Company and its
subsidiaries, except in all instances for changes
or decreases set
<PAGE> 18
17
forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as
to the significance thereof unless said explanation
is not deemed necessary by the Representatives; or
(3) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statement and the
Final Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the
same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the
information included or incorporated in Items 1, 2, 6, 7 and
11 of the Company's Annual Report on Form l0-K, incorporated
in the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and
the Final Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation; and
(iv) if pro forma financial statements are
included or incorporated in the Registration Statement and
the Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out
certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have
responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial
statements do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements.
<PAGE> 19
18
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Deloitte & Touche shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time,
in form and substance satisfactory to the Representatives, to the
effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or
delivery of the Offered Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(i) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
<PAGE> 20
19
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses.
________________________________________
If the sale of the Offered Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination pursuant to
Section 9 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Offered Securities.
7. Indemnification and Contribution.
_________________________________
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the
<PAGE> 21
20
Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that the names of the Underwriters set forth on the cover
page of the Prospectus Supplement and under the heading "Plan of
Distribution" in the Prospectus Supplement and the information set
forth under the heading "Plan of Distribution" in the Prospectus
Supplement relating to the after-market activities of the Underwriters
in making a market for, or purchasing in the secondary market, the
Securities in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in the documents referred to in
the foregoing indemnity, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election
to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the
<PAGE> 22
21
indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively, "Losses"), to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses), and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether
any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration
<PAGE> 23
22
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter.
__________________________
If any one or more Underwriters shall fail to purchase and pay for any of the
Offered Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Offered Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
principal amount of Offered Debt Securities or the number of Offered
Warrants, as applicable, which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of the
Offered Debt Securities or total number of Offered Warrants, as applicable,
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Offered Securities, and if such nondefaulting Underwriters do not
purchase all the Offered Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination.
____________
This Agreement shall be subject to termination in the absolute discretion of
the Representatives, by notice given to the Company prior to delivery of and
payment for the Offered Securities, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the Commission or the New
York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to proceed with the offering
or delivery of the Offered Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
<PAGE> 24
23
10. Representations and Indemnities to Survive.
___________________________________________
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Offered
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices.
________
All communications hereunder will be in writing and effective only on receipt,
and, if sent to the Representatives, will be mailed, delivered or telegraphed
and confirmed to them, at the address specified in Schedule I hereto; or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at Dial Tower, Phoenix, Arizona 85077, attention of the legal department.
12. Successors.
___________
This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
13. Applicable Law.
_______________
This Agreement will be governed by and construed in accordance with the laws
of the State of New York.
<PAGE> 25
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
The Dial Corp
By_______________________________
Name:
Title:
The foregoing Agreement
is hereby confirmed and
accepted as of the date
specified in Schedule I hereto.
Salomon Brothers Inc
Citicorp Securities Markets, Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: Salomon Brothers Inc
By____________________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 26
SCHEDULE I
Underwriting Agreement dated _________, 199__
Registration Statement No. 33-______
Representative(s): Salomon Brothers Inc, Citicorp Securities Markets,
Inc., Goldman, Sachs & Co. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
The Offered Securities shall have the following terms:
[DEBT SECURITIES
Title of Debt Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. __ ; Standard & Poor's
Corporation ___; Duff and Phelps, Inc.___
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
[Initial public offering price: %; plus accrued interest, if any, or
amortized original issue discount, if any, from , l9 .]
Purchase price: %, plus accrued interest, if any, or amortized original issue
discount, if any, from , 19 (payable in next day funds).
Other terms:
[Closing date and location:]]
<PAGE> 27
I-2
[DEBT WARRANTS
Number of Debt Warrants to be issued:
Debt Warrant Agent:
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued
with each $ principal
amount of Debt Securities:]
[Detachable data:]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price(s) of Debt Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Debt Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
<PAGE> 28
SCHEDULE II
<TABLE>
<CAPTION>
[Principal Amount of [Number of
Underwriter Debt Securities Debt Warrants
__________ ____________________ ______________
<S> <C> <C>
_______________ ________________
Total $ ] $ ]
=============== ===============
</TABLE>
<PAGE> 29
SCHEDULE III
Delayed Delivery Contract
, 1994
The Dial Corp
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Dear Sirs:
The undersigned hereby agrees to purchase from The Dial Corp
(the "Company"), and the Company agrees to sell to the undersigned, on________,
199___ (the "Delivery Date"), [$______________ principal amount of the
Company's___________________ (the "Offered Debt Securities") [convertible into
shares of common stock of the Company (the "Shares")]] [with attached]
[Warrants (the "Offered Warrants") to purchase [Title of Underlying Debt
Securities] (the "Underlying Debt Securities")] ([collectively,] the "Offered
Securities"), offered by the Company's Prospectus dated _____________________,
199____, and related Prospectus Supplement dated_______________, 199___ ,
receipt of a copy of which is hereby acknowledged, at a purchase price of
[_________ % of the principal amount thereof][$___ per Offered Warrant], plus
[accrued interest][amortization of original issue discount], if any, thereon
from _______, 199___, to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Offered Securities to be purchased by the
undersigned shall be made on or before _____ AM, New York City time, on the
Delivery Date to or upon the order of the Company in New York Clearing House
(next day) funds, at your office or at such other place as shall be agreed
between the Company and the undersigned, upon delivery to the undersigned of
the Offered Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no request is
received, the Offered Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate principal
amount of Offered Debt Securities or the number of Offered Warrants, as
applicable, to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for the Offered Securities on the Delivery Date, and the
obligation of the Company to sell and deliver
<PAGE> 30
III-2
the Offered Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of the Offered Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters")
such principal amount of the Offered Securities as is to be sold to them
pursuant to the Underwriting Agreement referred to in the Prospectus and
Prospectus Supplement mentioned above. Promptly after completion of such sale
to the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Offered Securities, and the obligation of the Company to cause
the Offered Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for the Offered
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
<PAGE> 31
III-3
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
_______________________________
(Name of Purchaser)
________________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
The Dial Corp
By _________________________
(Authorized Signature)
<PAGE> 1
S & S DRAFT
6/24/94
EXHIBIT 1.1(b)
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS.
________________________________________________________________________________
THE DIAL CORP
Preferred Stock, Depositary Shares, Common Stock
and/or
Warrants to Purchase Common Stock
UNDERWRITING AGREEMENT
______________________
Dated: ___________, 19__
________________________________________________________________________________
<PAGE> 2
THE DIAL CORP
(a Delaware corporation)
Preferred Stock, Depositary Shares, Common Stock and/or
Warrants to Purchase Common Stock
UNDERWRITING AGREEMENT
______________________
___________, 19__
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II
hereto
Dear Sirs:
The Dial Corp, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, the following
securities which may be sold either separately or together as specified in
Schedule I hereto (the "Offered Securities"): (1) shares of the Company's
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), (2)
depositary shares (the "Offered Depositary Shares") evidenced by depositary
receipts (the "Offered Receipts") representing an interest in shares of
Preferred Stock, which Offered Depositary Shares are to be issued pursuant to a
deposit agreement (the "Deposit Agreement") among the Company, _____________
(the "Depositary") and the holders from time to time of such Offered Receipts,
(3) shares of the Company's Common Stock, par value $1.50 per share (the
"Common Stock") and (4) warrants to purchase shares of Common Stock (the
"Offered Warrants"), which warrants are to be issued pursuant to a warrant
agreement (the "Common Stock Warrant Agreement")
<PAGE> 3
2
between the Company and ____________ (the "Common Warrant Agent"), such sale of
Offered Securities to be on the terms and conditions stated herein and in
Schedule II.
If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters"
and "Representatives", as used herein, shall each be deemed to refer to such
firm or firms.
The shares of Preferred Stock may be convertible (the
"Convertible Preferred Stock") into shares of Common Stock in accordance with
the terms of the certificate of designations relating to such Preferred Stock
(the "Certificate of Designations"), as specified in Schedule I.
Any shares of Common Stock issuable upon exercise of Offered
Warrants or upon conversion of shares of Preferred Stock are collectively
referred to herein as the "Shares". [If, at the time of the issuance of any
such Shares or Offered Common Stock, the Rights Agreement (as defined below) is
in effect, each such Share and share of Offered Common Stock will include, to
the extent provided for in the Rights Agreement, one Junior Preferred Stock
purchase right (such rights being hereinafter referred to as the "Rights")
entitling the holder thereof to purchase, under certain circumstances, Junior
Preferred Stock or other property. The Rights are to be issued pursuant to the
Rights Agreement dated as of February 15, 1992, between the Company and The
Valley National Bank of Arizona, as rights agent (such agreement or a successor
thereto, as the same may be amended, being referred to as the "Rights
Agreement").]
Any shares of Preferred Stock and Common Stock to be sold
pursuant to this Agreement, as specified in Schedule I, are referred to herein
separately as the "Offered Preferred Stock" and the "Offered Common Stock",
respectively, and collectively as the "Offered Securities". The Offered
Securities, the shares of Preferred Stock represented by the Offered Depositary
Shares, if any, and the Shares, if any, are collectively referred to as the
"Securities".
1. Representations and Warranties.
_______________________________
The Company represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Offered Securities is a Delayed
Offering (as specified in Schedule I hereto), paragraph (i) below is
applicable, and, if the offering of the Offered Securities is a
Non-Delayed Offering (as so specified), paragraph (ii) below is
applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has
filed with
<PAGE> 4
3
the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Offered Securities. The Company may have filed one or more
amendments thereto, and may have used a preliminary Final
Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective
and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
that purpose has been instituted or threatened by the
Commission. The offering of the Offered Securities is a Delayed
Offering and, although the Basic Prospectus may not include all
the information with respect to the Offered Securities and the
offering thereof required by the Act and the rules thereunder to
be included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and the rules
thereunder to be included therein as of the Effective Date. The
Company will next file with the Commission pursuant to Rules 415
and 424(b)(2) or (5) a final supplement to the form of
prospectus included in such registration statement relating to
the Offered Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
information with respect to the Offered Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information
and other changes (beyond that contained in the Basic Prospectus
and any Preliminary Final Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Offered Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. Such
registration statement, as so amended, has become effective and
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been instituted or threatened by the Commission. The Company
will next file with the Commission either (x) a final prospectus
supplement relating to the Offered Securities in accordance with
Rules 430A and 424(b)(1) or (4), or (y) prior to the
<PAGE> 5
4
effectiveness of such registration statement, an amendment to
such registration statement, including the form of final
prospectus supplement. In the case of clause (x), the Company
has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in the Final Prospectus with respect to the Offered
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with respect
to the Offered Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did and
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the Securities
Exchange Act of 1934 (the "Exchange Act"), and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
and will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not and will not,
and, on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations
or warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto).
<PAGE> 6
5
(c) The Company has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida statutes, and all regulations promulgated thereunder relating to
issuers doing business in Cuba.
(d) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date" shall
mean each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective. "Execution
Time" shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of a
Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Offered Securities and the
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Offered Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Offered Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective),
and, in the event any post-effective amendment thereto becomes effective
prior to the Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulations under the Act.
"Rule 430A Information" means information with respect to the Offered
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the
<PAGE> 7
6
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the effective
date thereof. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Offered Securities
is a Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
2. Purchase and Sale.
__________________
Subject to the terms and conditions and in reliance upon the representations
and warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I
hereto, the number of Offered Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides for the
sale of Offered Securities pursuant to delayed delivery arrangements, the
respective number of Offered Securities to be purchased by the Underwriters
shall be as set forth in Schedule II hereto less the respective amounts of
Contract Securities determined as provided below. Securities to be purchased
by the Underwriters are herein sometimes called the "Underwriters' Securities"
and Offered Securities to be purchased pursuant to Delayed Delivery Contracts
as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Offered Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the Closing Date,
the percentage set forth in Schedule I hereto of the number of the Offered
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum number of Offered Securities set forth in
<PAGE> 8
7
Schedule I hereto and may not exceed the maximum number of Offered Securities
set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The number of Offered Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total number of Contract Securities
as the number of Offered Securities set forth opposite the name of such
Underwriter bears to the aggregate number set forth in Schedule II hereto,
except to the extent that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company in writing; provided,
however, that the total number of Offered Securities to be purchased by all
Underwriters shall be the aggregate number set forth in Schedule II hereto less
the aggregate number of Contract Securities.
3. Delivery and Payment.
_____________________
Delivery of and payment for the Underwriters' Securities shall be made on the
date and at the time specified in Schedule I hereto (or such later date not
later than five business days after such specified date as the Representatives
shall designate) which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Underwriters' Securities being herein
called the "Closing Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on or by a New York
Clearing House bank and payable in next day funds. Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Offered Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance
of the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
4. Agreements.
___________
The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Offered Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final
<PAGE> 9
8
Prospectus) to the Basic Prospectus unless the Company has furnished you
a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the Offered
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose, and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Offered Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its reasonable efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement
or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the Registration
Statement (including
<PAGE> 10
9
exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all documents
relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities for
purchase by institutional investors.
[(f) Until the business date set forth on Schedule I hereto,
the Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company (including commercial paper in the ordinary
course of its business).]
(g) In the event that the Securities include Shares, the
Company will reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company
to satisfy any obligations to issue the Shares issuable upon conversion
of any Securities.
5. Conditions to the Obligations of the Underwriters.
__________________________________________________
The obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing
to a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time on the date of determination
of the public offering price, if such determination occurred at or prior
to 3:00 PM New York City time on such date, or (ii) 12:00 Noon on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
any such supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the
<PAGE> 11
10
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of L. Gene Lemon, Vice President and General Counsel for the
Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority
to own its properties and conduct its business as described in
the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material
business;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise
set forth in the Final Prospectus, all outstanding shares of
capital stock of the Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the knowledge
of such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the Securities conform to
the description thereof contained in the Final Prospectus; and,
if the Securities are to be listed on any securities exchange,
authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or
the Company has filed a preliminary listing application and all
required supporting documents with respect to the Securities
with such securities exchange and such counsel has no reason to
believe that the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(iv) [To be included only if the Underwriters are
purchasing Offered Preferred Stock.] (A) such Offered Preferred
Stock has been duly authorized and, when issued in accordance
with the terms of the Certificate of Designations and paid for
in accordance with this Agreement [and the Delayed Delivery
Contracts], will be validly issued, fully paid and
nonassessable. All corporate action required to be taken for
the
<PAGE> 12
11
authorization, issuance and delivery of such Offered Preferred
Stock has been validly taken. The issuance of such Offered
Preferred Stock is not subject to any preemptive rights of any
stockholder of the Company;
[To be included only if the Underwriters are purchasing
Offered Preferred Stock that includes Offered Convertible
Preferred Stock.] (B) such Offered Preferred Stock is
convertible into Common Stock in accordance with the terms of
the Offered Preferred Stock and the Certificate of Designations.
The Shares issuable upon conversion of such shares of Offered
Preferred Stock have been duly authorized and validly reserved
for issuance by the Company upon such conversion and, when
issued in accordance with the terms of such Offered Preferred
Stock and the Certificate of Designations, such Shares will be
validly issued, fully paid and nonassessable. All corporate
action required to be taken for the authorization, issuance and
delivery of such Shares has been validly taken. The issuance of
such Shares upon the conversion thereof will not be subject to
the preemptive rights of any stockholder of the Company;
(v) [to be included only if the Underwriters are
purchasing Offered Depositary Shares.] (A) the Deposit
Agreement has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and
delivery by the Depositary, the Deposit Agreement constitutes a
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law);
(B) the Offered Depositary Shares have been duly
authorized. When the Offered Receipts are executed,
countersigned, issued and delivered in the manner provided for
in the Deposit Agreement, such Offered Depositary Shares
evidenced thereby, when sold and paid for in accordance with
this Agreement [and the Delayed Delivery Contracts], will
represent legal and valid interests in the Preferred Stock
deposited by the Company with the Depositary pursuant to the
terms of the Deposit Agreement and will entitle the holder of
such Offered Receipts to the benefits of the Deposit Agreement;
(C) the shares of Preferred Stock being delivered to the
Depositary and represented by such Offered Depositary Shares
have been duly
<PAGE> 13
12
authorized and, when issued and delivered to the Depositary
against delivery of Offered Receipts to the Underwriters, will
be validly issued, fully paid and nonassessable. All corporate
action required to be taken for the authorization, issuance and
delivery of such Preferred Stock and Offered Depositary Shares
has been validly taken. The issuance of such Preferred Stock
and the Offered Depositary Shares is not subject to any
preemptive rights of any stockholder of the Company;
(D) [To be included only of the Underwriters are
purchasing Offered Depositary Shares evidencing an interest in
Convertible Preferred Stock.] such Preferred Stock is
convertible into Common Stock in accordance with the terms of
the Convertible Preferred Stock and the Certificate of
Designations. The Shares issuable upon conversion of such
shares of Convertible Preferred Stock represented by such
Offered Depositary Shares have been duly authorized and validly
reserved for issuance by the Company upon such conversion and,
when issued in accordance with the terms of such Convertible
Preferred Stock and the Certificate of Designations, such Shares
will be validly issued, fully paid and nonassessable. All
corporate action required to be taken for the authorization,
issuance and delivery of such Shares has been validly taken.
The issuance of such Shares upon the conversion thereof will not
be subject to the preemptive rights of any stockholder of the
Company;
(vi) [To be included only if the Underwriters are
purchasing Offered Common Stock.] such Offered Common Stock has
been duly authorized and, when issued and paid for in accordance
with this Agreement [and the Delayed Delivery Contracts], will
be validly issued, fully paid and nonassessable. All corporate
action required to be taken for the issuance, delivery and sale
of such Offered Common Stock has been validly taken. The
issuance of the Offered Common Stock is not subject to any
preemptive rights of any stockholder of the Company;
(vii) [To be included only if the Underwriters are
purchasing Offered Warrants.] (A) the Warrant Agreement has
been duly authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery by the
Warrant Agent, constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in
effect); and the Offered Warrants have been duly executed and
issued in accordance with the provisions of the Warrant
Agreement and delivered to and paid for
<PAGE> 14
13
by the Underwriters pursuant to this Agreement, in the case of
the Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of Contract
Securities, will constitute legal, valid and binding obligations
of the Company, entitled to the benefits of the Warrant
Agreement;
(B) such Offered Warrants have been duly authorized
by the Company and, assuming that the Offered Warrants have been
duly countersigned by the Warrant Agent in the manner provided
for in its certificate delivered to you at the Closing Time,
such Offered Warrants have been duly executed, issued and
delivered by the Company and, when paid for in accordance with
this Agreement [and the Delayed Delivery Contracts], will
constitute valid and binding obligations of the Company in
accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law);
(C) the Shares have been duly authorized by the
Company and validly reserved for issuance by the Company upon
such exercise and, when issued and delivered in accordance with
the terms of the Warrant Agreement, such Shares will be validly
issued, fully paid and nonassessable. All corporate action
required to be taken for the authorization, issuance and
delivery of such Shares has been validly taken. The issuance of
such Offered Warrants is not, and the issuance of such Shares
upon exercise of the Offered Warrants will not be, subject to
the preemptive rights of any stockholder of the Company;
(viii) [To be included only if the Underwriters are
purchasing Offered Common Stock, Offered Warrants or Offered
Preferred Stock that includes Convertible Preferred Stock.] if
the Rights Agreement is in effect at the time of the issuance of
the Shares or shares of Offered Common Stock, the Rights
Agreement has been duly authorized, executed and delivered by
the Company and, when issued upon issuance of such Shares or
shares of Offered Common Stock, will be validly issued; all
corporate action required to be taken for the authorization,
issuance and delivery of such Rights has been validly taken; the
issuance of such Rights upon issuance of such Shares or shares
of Offered Common Stock is not, and the issuance of such shares
of Common Stock upon exercise of such Rights will not be,
subject to any preemptive rights of any stockholder of the
<PAGE> 15
14
Company; and the Rights Agreement conforms in all material
respects as to legal matters to the description thereof
contained in the Prospectus;
(ix) each of the Securities, the Deposit Agreement and
any Warrant Agreement conforms in all material respect as to
legal matters to the descriptions thereof contained in the
Prospectus;
(x) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body, or any
arbitrator involving the Company or any of its subsidiaries of a
character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Final Prospectus, and
there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not described
or filed as required; and the statements included or
incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to the
Company fairly summarize such matters;
(xi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final
Prospectus (other than the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the
Act and the Exchange Act, and the respective rules thereunder;
and such counsel has no reason to believe that at the Effective
Date the Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(xii) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the
Company;
<PAGE> 16
15
(xiii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Offered Securities by the Underwriters and
such other approvals (specified in such opinion) as have been
obtained;
(xiv) neither the issue and sale of the Offered
Securities, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the
terms hereof or of any Delayed Delivery Contracts will conflict
with, result in a breach or violation of, or constitute a
default under any law or the charter or by-laws of the Company
or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound, or any judgment, order or
decree known to such counsel to be applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(xv) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Offered
Securities, the Deposit Agreement, the Warrant Agreement, [the Rights
Agreement,] any Delayed Delivery Contracts, the Registration Statement,
the Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
<PAGE> 17
16
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects
on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto) there has been no material adverse change in
the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) At the Closing Date, Deloitte & Touche shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives)
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Final Prospectus and reported
on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying
<PAGE> 18
17
out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
executive, audit, compensation and nominating committee of the
Company and the Subsidiaries; and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most
recent audited financial statements in or incorporated in the
Final Prospectus, nothing came to their attention which caused
them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration Statement
and the Final Prospectus do not comply in form in all
material respects with applicable accounting requirements
and with the published rules and regulations of the
Commission with respect to financial statements included
or incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial statements
are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements (other
than any capsule information), audited or unaudited, in
or incorporated in the Registration Statement and the
Final Prospectus, there were any changes, at a specified
date not more than five business days prior to the date
of the letter, in the long-term debt of the Company and
its subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company or
decreases in working capital of the Company and its
subsidiaries as compared with the amounts shown on the
most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most
recent financial statements included or incorporated in
the Registration Statement and the Final Prospectus to
such specified date there were any decreases, as compared
with the corresponding period in the preceding year in
net revenues or income before income taxes or in total or
per share amounts of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set
<PAGE> 19
18
forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do not
agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with that
of the corresponding amounts in the audited financial
statements included or incorporated in the Registration
Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual
Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the Registration
Statement and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any
questions of legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Final
Prospectus, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the acquired
company who have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the
pro forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply in form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
such statements.
<PAGE> 20
19
References to the Final Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Deloitte & Touche shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in
form and substance satisfactory to the Representatives, to the effect
set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive
of any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph (e)
of this Section 5 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Offered
Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
<PAGE> 21
20
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses.
________________________________________
If the sale of the Offered Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination pursuant to
Section 9 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Offered Securities.
7. Indemnification and Contribution.
_________________________________
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the
registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls
the Company within the meaning of either the
<PAGE> 22
21
Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the names of the
Underwriters set forth on the cover page of the Prospectus
Supplement and under the heading "Plan of Distribution" in the
Prospectus Supplement and the information set forth under the
heading "Plan of Distribution" in the Prospectus Supplement relating
to the after-market activities of the Underwriters in making a
market for, or purchasing in the secondary market, the Securities in
any Preliminary Final Prospectus or the Final Prospectus constitute
the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in
the foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of
such action or (iv) the
<PAGE> 23
22
indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party.
An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and
the Underwriters agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) (collectively, "Losses"), to which the Company and one or more
of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company
and by the Underwriters from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in excess
of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company
and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Underwriters.
The Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section
7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration
<PAGE> 24
23
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter.
__________________________
If any one or more Underwriters shall fail to purchase and pay for any of the
Offered Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Offered Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the number of
Offered Securities or the number of Offered Warrants, as applicable, which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate number of the Offered Securities or total number of
Offered Warrants, as applicable, set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Offered Securities, and if such
nondefaulting Underwriters do not purchase all the Offered Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in
this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
9. Termination.
____________
This Agreement shall be subject to termination in the absolute discretion of
the Representatives, by notice given to the Company prior to delivery of and
payment for the Offered Securities, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the Commission or the New
York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to proceed with the offering
or delivery of the Offered Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
<PAGE> 25
24
10. Representations and Indemnities to Survive.
___________________________________________
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Offered
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices.
________
All communications hereunder will be in writing and effective only on receipt,
and, if sent to the Representatives, will be mailed, delivered or telegraphed
and confirmed to them, at the address specified in Schedule I hereto; or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at Dial Tower, Phoenix, Arizona 85077, attention of the legal department.
12. Successors.
___________
This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
13. Applicable Law.
_______________
This Agreement will be governed by and construed in accordance with the laws
of the State of New York.
<PAGE> 26
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
The Dial Corp
By
____________________________
Name:
Title:
The foregoing Agreement
is hereby confirmed and
accepted as of the date
specified in Schedule I hereto.
Salomon Brothers Inc
Citicorp Securities Markets, Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: Salomon Brothers Inc
By
___________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 27
SCHEDULE I
Underwriting Agreement dated _________, 199__
Registration Statement No. 33-______
Representative(s): Salomon Brothers Inc, Citicorp Securities Markets, Inc.,
Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
The Offered Securities shall have the following terms:
Title of Securities:
A. General
Closing date, time and location:
Other terms and conditions:
B. Terms of Preferred Stock (if any)
Designation:
Liquidation preference per share:
Number of shares:
Public offering price: $___________________
Purchase price per share (include accrued dividends,
if any): $____________________
Convertibility into Common Stock:
Listing requirement: [None] [NYSE] [Any other stock exchange]
Delayed delivery contracts: [Authorized] [Not Authorized]
[If delayed delivery contracts are authorized
(i) Delivery date:
<PAGE> 28
I-2
(ii) Minimum principal amount per contract:
(iii) Minimum aggregate principal amount:
(iv) Maximum aggregate principal amount:
(v) Fee: %]
Other provisions:
C. Terms of Offered Depositary Shares Representing Preferred Stock
(if any)
Designation:
Liquidation preference per share:
Number of shares:
Public offering price: $________________
Purchase price per share (include accrued dividends, if any):
Listing requirements: [None] [NYSE] [any other stock exchange]
[If delayed delivery contracts are authorized
(i) Delivery date:
(ii) Minimum principal amount per contract:
(iii) Minimum aggregate principal amount:
(iv) Maximum aggregate principal amount:
(v) Fee: %]
Other provisions:
D. Common Stock (if any)
Number of shares of Common Stock:
<PAGE> 29
I-3
Purchase price per share: $___________________
Public offering price: $___________________
[If delayed delivery contracts are authorized
(i) Delivery date:
(ii) Minimum principal amount per contract:
(iii) Minimum aggregate principal amount:
(iv) Maximum aggregate principal amount:
(v) Fee: %]
Other provisions:
E. Common Warrants (if any)
Number of Common Warrants to be issued:
Form of Common Warrants: [Registered] [Bearer]
Date on which Common Warrants are first exercisable:
Date on which Common Warrants expire:
Exercise price(s) of one Common Warrant:
Number of shares of Common Stock purchasable upon exercise of one
Common Stock Warrant:
Public offering price: $___________________
Purchase price: $___________________
Listing requirement: [None] [NYSE] [any other stock exchange]
[If delayed delivery contracts are authorized
(i) Delivery date:
<PAGE> 30
I-4
(ii) Minimum principal amount per contract:
(iii) Minimum aggregate principal amount:
(iv) Maximum aggregate principal amount:
(v) Fee: %]
Other provisions:
<PAGE> 31
SCHEDULE II
<TABLE>
<CAPTION>
Number of Shares of
Underwriter Securities
___________ ____________________
<S> <C>
____________________
Total
=====================
</TABLE>
<PAGE> 32
SCHEDULE III
Delayed Delivery Contract
, 1994
The Dial Corp
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Dear Sirs:
The undersigned hereby agrees to purchase from The Dial Corp
(the "Company"), and the Company agrees to sell to the undersigned, on
, 199__ (the "Delivery Date"), [number] of the Company's ___________________
[with attached] Securities [collectively,] the "Offered Securities"), offered
by the Company's Prospectus dated ___________________, 199__, and related
Prospectus Supplement dated ________________________, 199___, receipt of a copy
of which is hereby acknowledged, at a purchase price of [$___ per Offered
Security], and on the further terms and conditions set forth in this contract.
Payment for the Offered Securities to be purchased by the
undersigned shall be made on or before _____ AM, New York City time, on the
Delivery Date to or upon the order of the Company in New York Clearing House
(next day) funds, at your office or at such other place as shall be agreed
between the Company and the undersigned, upon delivery to the undersigned of
the Offered Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no request is
received, the Offered Securities will be registered in the name of the
undersigned and issued in a denomination equal to the number of Offered
Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Offered Securities on the Delivery Date, and the obligation of
the Company to sell and deliver the Offered Securities on the Delivery Date,
shall be subject to the conditions (and neither party shall incur any liability
by reason of the failure thereof) that (1) the purchase of the Offered
Securities to be made by the undersigned, which purchase the undersigned
represents is not prohibited on the date hereof, shall not on the Delivery Date
be prohibited under the laws of the jurisdiction to which the undersigned is
subject, and (2) the Company, on or before the Delivery Date, shall have sold
to certain underwriters (the "Underwriters") such
<PAGE> 33
III-2
number of the Offered Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters,
the Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinion of counsel
for the Company delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment for the
Offered Securities, and the obligation of the Company to cause the Offered
Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Offered Securities
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
<PAGE> 34
III-3
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
________________________________
(Name of Purchaser)
________________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
The Dial Corp
By _________________________
(Authorized Signature)
<PAGE> 1
S & S DRAFT
6/24/94
EXHIBIT 1.2
The Dial Corp
$500,000,000 Medium-Term Notes
Due More Than Nine Months
From Date of Issue
Selling Agency Agreement
___________, 199_
New York, New York
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Citicorp Securities Markets, Inc.
55 Water Street
New York, New York 10041
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
The Dial Corp, a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale by
the Company of up to $500,000,000 aggregate principal amount of its
Medium-Term Notes, Due More Than Nine Months From Date of Issue (the
"Notes"). The Notes will be issued under an indenture (the
"Indenture") dated as of April 1, 1993 between the Company and The
Chase Manhattan Bank, N.A., as trustee (the "Trustee"). Unless
otherwise specifically provided for and set forth in a Pricing
Supplement (as defined below), the Notes will be issued in minimum
denominations of $1,000 and in denominations exceeding such amount
<PAGE> 2
2
by integral multiples of $1,000, will be issued only in fully registered
form and will have the interest rates, maturities and, if applicable,
other terms set forth in such Pricing Supplement. The Notes will be
issued, and the terms thereof established, in accordance with the
Indenture and the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures") (unless a Terms Agreement (as
defined in Section 2(b)) modifies or otherwise supersedes such
Procedures with respect to the Notes issued pursuant to such Terms
Agreement). The Procedures may be amended only by written agreement of
the Company and you after notice to, and with the approval of, the
Trustee. For the purposes of this Agreement, the term "Agent" shall
refer to any of you acting solely in the capacity of agent for the
Company pursuant to Section 2(a) and not as principal (collectively,
the "Agents"), the term "Purchaser" shall refer to one of you acting
solely as principal pursuant to Section 2(b) and not as agent, and the
term "you" shall refer to you collectively whether at any time any of
you is acting in both such capacities or in either such capacity. In
acting under this Agreement, in whatever capacity, each of you is
acting individually and not jointly.
1. Representations and Warranties.
_______________________________
The Company represents and warrants to, and agrees with, you as set forth
below in this Section 1. Certain terms used in this Section 1 are defined in
paragraph (e) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such Form or Schedule (File Number:
33-________), including a basic prospectus, which has become
effective, for the registration under the Act of $500,000,000
aggregate principal amount of debt securities (the "Securities"),
including the Notes. Such registration statement, as amended at
the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies in all other
material respects with said Rule. The Company has included in
such registration statement, or has filed or will file with the
Commission pursuant to the applicable paragraph of Rule 424(b)
under the Act, a supplement to the form of prospectus included in
such registration statement relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement"). In connection
with the sale of Notes, the Company proposes to file with the
Commission pursuant to the applicable paragraph of Rule 424(b)
under the Act further supplements to the Prospectus Supplement
(each a "Pricing Supplement") specifying the interest rates,
maturity dates and, if appropriate, other similar terms of the
Notes sold pursuant hereto or the offering thereof. The
Registration Statement has become effective under the Act and no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been instituted or threatened by the Commission.
<PAGE> 3
3
(b) As of the Execution Time, on the Effective Date, when
any supplement to the Prospectus is filed with the Commission, as
of the date of a Terms Agreement and at the date of delivery by
the Company of any Notes sold hereunder (a "Closing Date"), (i)
the Registration Statement, as amended as of any such time, and
the Prospectus, as supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and (iii) the Prospectus, as supplemented as of any such time,
will not contain any untrue statement of a material fact or 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; provided, however, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the
Trust Indenture Act or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by any of you
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) Each of the Company, Aircraft Service International,
Inc., Exhibit Group Inc., Dobbs International Services, Inc.,
GES Exposition Services, Inc., Greyhound Leisure Services,
Inc., Premier Cruise Lines, Ltd., Jetsave Inc., Restaura, Inc.,
Transportation Leasing Co., Greyhound Lines of Canada Ltd.,
Brewster Transport Company Limited, Travelers Express Company, Inc.,
Armour International Company (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business, except where the failure to so qualify
will not have a material adverse effect on the Company and its
subsidiaries, considered as a whole.
<PAGE> 4
4
(d) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital stock
of the Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest and any other security interests, claims, liens
or encumbrances.
(e) The Company's authorized equity capitalization is as set
forth in the Prospectus; and the Notes conform to the description
thereof contained in the Prospectus (subject to the insertion in
the Notes of the maturity dates, the interest rates and other
similar terms thereof which will be described in supplements to the
Prospectus as contemplated by the fourth sentence of Section 1(a)
of this Agreement).
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and
binding instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect
or general equitable principles and public policy limitations).
The Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally
from time to time in effect or general equitable principles); and
the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture.
(g) There is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document
of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which is
not described or filed as required.
(h) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein except such
as have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
<PAGE> 5
5
sale of the Notes as contemplated by this Agreement and such other
approvals (specified in such opinion) as have been obtained.
(i) Neither the execution and delivery of the Indenture, the
issue and sale of the Notes, nor the consummation of any other of
the transactions herein contemplated, nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation
of, or constitute a default under any law or the charter or
by-laws of the Company or the terms of any indenture or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or bound or any judgment, order,
regulation or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries.
(j) Deloitte & Touche, who are reporting upon the audited
consolidated financial statements and schedules included in the
Registration Statement, are independent public accountants as
required by the Act and the regulations thereunder.
(k) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to
the Securities contained in the Registration Statement at the
Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time. "Rule
415" and "Rule 424" refer to such rules under the Act. Any
reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3, which were
filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus,
the Prospectus Supplement or the Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the
<PAGE> 6
6
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(l) The Company has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of
the Florida statutes, and all regulations promulgated thereunder
relating to issuers doing business in Cuba.
2. Appointment of Agents; Solicitation by the Agents of
____________________________________________________
Offers to Purchase; Sales of Notes to a Purchaser.
__________________________________________________
(a) Subject to the terms and conditions set forth herein and subject to the
reservation by the Company of the right to sell Notes directly on its own
behalf at any time and to any investor or through other agents (provided that
any other agent will execute an agreement with the Company upon the same
terms and conditions as contained herein and that the Company will
notify each party hereto of its agreement with any other agents), the
Company hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes from the
Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the
Agents agrees, as agent of the Company, to use its reasonable efforts
to solicit offers to purchase the Notes from the Company upon the terms
and conditions set forth in the Prospectus (and any supplement thereto)
and in the Procedures. Each Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted
by the Company, but such Agent shall not, except as otherwise provided
in this Agreement, be obligated to disclose the identity of any
purchaser or have any liability to the Company in the event any such
purchase is not consummated for any reason. Except as provided in
Section 2(b), under no circumstances will any Agent be obligated to
purchase any Notes for its own account. It is understood and agreed,
however, that any Agent may purchase Notes as principal pursuant to
Section 2(b).
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon
receipt of instructions from the Company, the Agents will forthwith
suspend solicitation of offers to purchase Notes from the Company until
such time as the Company has advised them that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, on the
Closing Date, with respect to each sale of Notes by the Company as a
result of a solicitation made by such Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal
amount of the Notes sold by the Company. Such commission shall be
payable as specified in the Procedures.
<PAGE> 7
7
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an
Agent, as agent for the Company, at such time and in such amounts as
such Agent deems advisable. The Company may from time to time offer
Notes for sale otherwise than through an Agent; provided, however, that
so long as this Agreement is in effect the Company shall not solicit or
accept offers to purchase Notes through any agent other than an Agent.
If the Company shall default in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Company shall
indemnify and hold each of you harmless against any loss, claim or
damage arising from or as result of such default by the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determines that the Company shall
sell Notes directly to any of you as principal, each such sale of Notes
shall be made in accordance with the terms of this Agreement and a
supplemental agreement relating to such sale. Each such supplemental
agreement (which may be either an oral or written agreement) is herein
referred to as a "Terms Agreement". Each Terms Agreement shall
describe the Notes to be purchased by the Purchaser pursuant thereto
and shall specify the aggregate principal amount of such Notes, the
price to be paid to the Company for such Notes, the maturity date of
such Notes, the rate at which interest will be paid on such Notes, the
dates on which interest will be paid on such Notes and the record date
with respect to each such payment of interest, the Closing Date for the
purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery
of opinions of counsel, certificates from the Company or its officers
or a letter from the Company's independent public accountants as
described in Section 6(b). Any such Terms Agreement may also specify
the period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to have been
made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions
herein set forth.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing
Date agreed to in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by the
method and in the form set forth in the Procedures unless otherwise
agreed to between the Company and the Purchaser in such Terms
Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall
be purchased by such Purchaser at a price equal to 100% of the
principal amount thereof less a percentage equal to the commission
applicable to an agency sale of a Note of identical maturity and (ii)
may be
<PAGE> 8
8
resold by such Purchaser at varying prices from time to time or,
if set forth in the applicable Terms Agreement and Pricing Supplement,
at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group and may
reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
3. Offering and Sale of Notes.
___________________________
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures.
4. Agreements.
___________
The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes), the Company
will not file any amendment to the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current
reports filed under the Exchange Act, (ii) a supplement relating
to any offering of Notes providing solely for the specification of
or a change in the maturity dates, interest rates, issuance prices
or other similar terms of any Notes or (iii) a supplement relating
to an offering of Securities other than the Notes) unless the
Company has furnished each of you a copy for your review prior to
filing and given each of you a reasonable opportunity to comment
on any such proposed amendment or supplement. Subject to the
foregoing sentence, the Company will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to you of such
filing. The Company will promptly advise each of you (i) when the
Prospectus, and any supplement thereto, shall have been filed with
the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of any offering of Notes, any amendment of the
Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its reasonable efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to
<PAGE> 9
9
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify each of you to suspend
solicitation of offers to purchase Notes (and, if so notified by
the Company, each of you shall forthwith suspend such solicitation
and cease using the Prospectus as then supplemented), (ii) prepare
and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which
will correct such statement or omission or effect such compliance
and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment
or supplement, and any documents, certificates and opinions
furnished to each of you pursuant to paragraph (g) of this Section
4 in connection with the preparation or filing of such amendment
or supplement are satisfactory in all respects to you, you will,
upon the filing of such amendment or supplement with the
Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume
your obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus
relating to the Notes is required to be delivered under the Act,
will file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and will furnish to each of you copies of such
documents. In addition, on or prior to the date on which the
Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will
furnish to each of you the information contained or to be
contained in such announcement. The Company also will furnish to
each of you copies of all press releases or announcements
furnished to news or wire services and any other material press
releases and announcements. The Company will immediately notify
each of you of (i) any decrease in the rating of the Notes or
any other debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or (ii) any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change, as soon as the Company learns of any such
decrease or notice.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or statements of the Company and its subsidiaries which
will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
<PAGE> 10
10
(e) The Company will furnish to each of you and your
counsel, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a
prospectus may be required by the Act, as many copies of the
Prospectus and any supplement thereto as you may reasonably
request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you
may designate, will maintain such qualifications in effect so long
as required for the distribution of the Notes, and will arrange
for the determination of the legality of the Notes for purchase by
institutional investors.
(g) The Company shall furnish to each of you such
information, documents, certificates of officers of the Company
and opinions of counsel for the Company relating to the business,
operations and affairs of the Company, the Registration Statement,
the Prospectus, and any amendments thereof or supplements thereto,
the Indenture, the Notes, this Agreement, the Procedures and the
performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time
to time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the Notes
is consummated, (i) pay all expenses incident to the performance
of its obligations under this Agreement and any Terms Agreement,
including the fees and disbursements of its accountants and
counsel, the cost of printing or other production and delivery of
the Registration Statement, the Prospectus, all amendments thereof
and supplements thereto, the Indenture, this Agreement, any Terms
Agreement and all other documents relating to the offering, the
cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including fees of counsel, incurred in
compliance with Section 4(f), the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes, (ii)
reimburse each of you as requested for all out-of-pocket expenses
(including without limitation advertising expenses), if any,
incurred with the approval of the Company by you in connection
with this Agreement and (iii) pay the fees and expenses of your
counsel, Shearman & Sterling, incurred in connection with this
Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at
the time of such acceptance, as though made at and as of such
time, and a covenant that such representations and warranties will
be true and correct at the time of delivery to the purchaser of
the Notes relating to such acceptance, as though made at and as of
such time (it being understood that
<PAGE> 11
11
for purposes of the foregoing affirmation and covenant such
representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such time).
Each such acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date
for the sale of such Notes, after giving effect to the issuance of
such Notes, of any other Notes to be issued on or prior to such
settlement date and of any other Securities to be issued and sold by
the Company on or prior to such settlement date, the aggregate amount
of Securities (including any Notes) which have been issued and sold by
the Company will not exceed the amount of Securities registered pursuant
to the Registration Statement. The Company will inform you promptly
upon your request of the aggregate amount of Securities registered under
the Registration Statement which remain unsold.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement relating to any offering of Securities other than
the Notes or providing solely for the specification of or a change
in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto), the
Company will deliver or cause to be delivered promptly to each of
you a certificate of the Company, signed by the Chairman of the
Board or the President and the principal financial or accounting
officer of the Company, dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, in
form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 5(d) but modified to relate to
the last day of the fiscal quarter for which financial statements
of the Company were last filed with the Commission and to the
Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or
the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement (i) relating to any offering of Securities other
than the Notes, (ii) providing solely for the specification of or
a change in the maturity dates, the interest rates, the issuance
prices or other similar terms of any Notes sold pursuant hereto or
(iii) setting forth or incorporating by reference financial
statements or other information as of and for a fiscal quarter,
unless, in the case of clause (iii) above, in the reasonable
judgment of any of you, such financial statements or other
information are of such a nature that an opinion of counsel should
be furnished), the Company shall furnish or cause to be furnished
promptly to each of you a written opinion of counsel of the
Company satisfactory to each of you, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of the same tenor
as the opinion referred to in Section 5(b) but
<PAGE> 12
12
modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement or, in lieu of such opinion,
counsel last furnishing such an opinion to you may furnish each of you
with a letter to the effect that you may rely on such last opinion
to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement).
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate
amended or supplemental financial information, the Company shall
cause its independent public accountants promptly to furnish each
of you a letter, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the letter
referred to in Section 5(e) with such changes as may be necessary
to reflect the amended and supplemental financial information
included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the
date of such letter; provided, however, that, if the Registration
Statement or the Prospectus is amended or supplemented solely to
include or incorporate by reference financial information as of and
for a fiscal quarter, the Company's independent public accountants may
limit the scope of such letter, which shall be satisfactory in
form to each of you, to the unaudited financial statements, the
related "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and any other information of
an accounting, financial or statistical nature included in such
amendment or supplement, unless, in the reasonable judgment of any
of you, such letter should cover other information or changes in
specified financial statement line items.
(m) During the period, if any, specified (whether orally or
in writing) in any Terms Agreement, the Company shall not, without
the prior consent of the Purchaser thereunder, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly,
or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Notes being sold
pursuant to such Terms Agreement).
5. Conditions to the Obligations of the Agents.
____________________________________________
The obligations of each Agent to solicit offers to purchase the Notes shall
be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission and as of each Closing Date, to the accuracy of the
statements of the
<PAGE> 13
13
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to each Agent the
opinion of L. Gene Lemon, Vice President and General Counsel for
the Company, dated the Execution Time, to the effect that:
(i) each of the Company and the Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties
or conducts material business, except where the failure to so
qualify will not have a material adverse effect on the
Company and its subsidiaries, considered as a whole;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares
of capital stock of the Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Prospectus; and the Notes conform to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
the fourth sentence of Section 1(a) of this Agreement);
<PAGE> 14
14
(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
in effect or general equitable principles); and the Notes
have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers
thereof, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated by reference in the
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been or will
be made in the manner and within the time period required by
Rule 424(b); to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; and the Registration
Statement and the Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; and
such counsel has no reason to believe that the Registration
Statement at the Effective Date or at the Execution Time
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Prospectus includes any untrue statement of a material fact
or omits to state a material fact necessary to
<PAGE> 15
15
make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect or general
equitable principles and public policy limitations);
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated herein except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the sale of the Notes as
contemplated by this Agreement and such other approvals (specified in
such opinion) as have been obtained;
(ix) neither the execution and delivery of the Indenture, the
issue and sale of the Notes, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws of the
Company or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound or any judgment, order, regulation or
decree known to such counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than
the State of Delaware or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Agent and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto
at the date such opinion is rendered.
<PAGE> 16
16
(c) Each Agent shall have received from Shearman & Sterling,
counsel for the Agents, such opinion or opinions, dated the date
hereof, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus (together
with any supplement thereto) and other related matters as the
Agents may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of
the Company, dated the Execution Time, to the effect that the
signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as
if made on the date hereof and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(e) At the Execution Time, Deloitte & Touche shall have
furnished to each Agent a letter or letters (which may refer to
letters previously delivered to the Agents), dated as of the
Execution Time, in form and substance satisfactory to the Agents,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act, and the respective
applicable published rules and regulations thereunder, and stating
in effect that:
<PAGE> 17
17
(i) in their opinion the audited financial statements,
financial statement schedules and pro forma financial
statements, if any, included or incorporated in the
Registration Statement and the Prospectus and reported on by
them comply in form in all material respects with the
applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but
not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive, audit,
compensation and nominating committee of the Company and the
Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the
Prospectus do not comply in form in all material
respects with applicable accounting requirements and
with the published rules and regulations of the
Commission with respect to financial statements included
or incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement
and the Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements (other than
any capsule information), audited or unaudited, included
or incorporated in the Registration Statement and the
Prospectus, there were any changes, at a specified date
not more than five business days prior to the date of
the letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company or
working capital of the Company and its subsidiaries as
compared with the amounts shown
<PAGE> 18
18
on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Prospectus,
or for the period from the date of the most recent financial
statements included or incorporated in the Registration
Statement and the Prospectus to such specified date
there were any decreases, as compared with the corresponding
period in the preceding year in net revenues or income before
income taxes or in total or per share amounts of net income of
the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Agents; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not agree
with the amounts set forth in the unaudited financial
statements for the same periods or were not determined
on a basis substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the Registration
Statement and the Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
the Company and its subsidiaries) set forth in the
Registration Statement and the Prospectus and in Exhibit 12
to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the
Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and
the Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and
the Prospectus, on the basis of a reading of the unaudited
pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the
Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application
<PAGE> 19
19
of the pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions
of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided
in this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to such Agents
and counsel for the Agents, this Agreement and all obligations of any
Agent hereunder may be canceled at any time by the Agents. Notice of
such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5
shall be delivered at the office of Shearman & Sterling, 599 Lexington
Avenue, New York, New York, on the date hereof.
6. Conditions to the Obligations of a Purchaser.
_____________________________________________
The obligations of a Purchaser to purchase any Notes will be subject to
the accuracy of the representations and warranties on the part of the
Company herein as of the date of the related Terms Agreement and as of
the Closing Date for such Notes, to the performance and observance by
the Company of all covenants and agreements herein contained on its
part to be performed and observed and to the following additional
conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as
of the Closing Date, to the effect set forth in Section 5(d)
(except that references to the Prospectus shall be to the
Prospectus as supplemented as of the date of such Terms
Agreement), (ii) the opinion of L. Gene
<PAGE> 20
20
Lemon, General Counsel for the Company, dated as of the Closing
Date, to the effect set forth in Section 5(b), (iii) the opinion of
Shearman & Sterling, counsel for the Purchaser, dated as of the Closing
Date, to the effect set forth in Section 5(c), and (iv) the letter of
Deloitte & Touche, independent accountants for the Company, dated as
of the Closing Date, to the effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates
and documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as provided
in this Agreement and the applicable Terms Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this
Agreement or such Terms Agreement and required to be delivered to the
Purchaser pursuant to the terms hereof and thereof shall not be in all
material respects reasonably satisfactory in form and substance to the
Purchaser and its counsel, such Terms Agreement and all obligations of
the Purchaser thereunder and with respect to the Notes subject thereto
may be canceled at, or at any time prior to, the respective Closing
Date by the Purchaser. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
_____________________________________________________________
(a) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall
have the right to refuse to purchase such Note if, at the Closing Date
therefor, any condition set forth in Section 5 or 6, as applicable, shall
not be satisfied.
(b) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall
have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development
specified in any of Sections 9(b)(i) through (v) shall have occurred (with
the judgment of the Agent which presented the offer to purchase such Note
being substituted for any judgment of a Purchaser required therein) the
effect of which is, in the judgment of the Agent which presented the offer
to purchase such Note, so material and adverse as to make it impractical
or inadvisable to proceed with the sale and delivery of such Note (it
being understood that under no circumstance shall any such Agent have any
duty or obligation to the Company or to any such person to exercise the
judgment permitted to be exercised under this Section 7(b) and Section
9(b)).
8. Indemnification and Contribution.
_________________________________
(a) The Company agrees to indemnify and hold harmless each of you,
the directors, officers, employees and agents of each of you and each
person who controls each of you within the meaning of either the
<PAGE> 21
21
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which you, they or any of you or them
may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or
in any amendment thereof, or in the Prospectus or any preliminary
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by any of you specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to you, but only with reference to written
information relating to such of you furnished to the Company by such of
you specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which you may otherwise have. The Company acknowledges that the
names of the Agents set forth on the cover page of the Prospectus
Supplement and the information set forth under the heading "Plan of
Distribution" in the Prospectus Supplement relating to the after-market
activities of the Agents in making a market for, or purchasing in the
secondary market, the Notes, constitute the only information furnished in
writing by any of you for inclusion in the documents referred to in the
foregoing indemnity, and you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will,if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any
<PAGE> 22
22
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and each of you agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of you may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and
by each of you from the offering of the Notes from which such Losses
arise; provided, however, that in no case shall any of you be responsible
for any amount in excess of the commissions received by such of you in
connection with the sale of Notes from which such Losses arise (or, in the
case of Notes sold pursuant to a Terms Agreement, the aggregate
commissions that would have been received by such of you if such
commissions had been payable). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company
and each of you shall contribute in such proportion as is appropriate to
reflect
<PAGE> 23
23
not only such relative benefits but also the relative fault of the
Company and of each of you in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) of the Notes from which such Losses arise, and benefits received
by each of you shall be deemed to be equal to the total commissions
received by such of you in connection with the sale of Notes from which
such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such
of you if such commissions had been payable). Relative fault shall be
determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or any of you.
The Company and each of you agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d),
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls any of you within the
meaning of the Act or the Exchange Act and each director, officer,
employee and agent of any of you shall have the same rights to
contribution as you and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Termination.
____________
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated either by
the Company as to any Agent or by any of you insofar as this Agreement
relates to any Agent, by giving written notice of such termination to such
Agent or the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day following the
receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other
party hereto, except as provided in the fourth paragraph of Section 2(a),
Section 4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for any Note to be purchased thereunder, if
prior to such time (i) there shall have occurred, subsequent to the
agreement to purchase such Note, any change, or any development involving
a prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which is, in the judgment of
the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of such Note, (ii)
there shall have been, subsequent to the agreement
<PAGE> 24
24
to purchase such Note, any decrease in the rating of any of the Company's
debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate
the direction of the possible change, (iii) trading in the Company's
Common Stock shall have been suspended by the Commission or the New York
Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (iv) a banking moratorium shall
have been declared by either Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as
to make it, in the judgment of the Purchaser, impracticable or
inadvisable to proceed with the offering or delivery of such Notes as
contemplated by the Prospectus (exclusive of any supplement thereto).
10. Survival of Certain Provisions.
_______________________________
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of you set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of you or the
Company or any of the directors, officers, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(h)
and 8 hereof shall survive the termination or cancellation of this
Agreement. The provisions of this Agreement (including without
limitation Section 7 hereof) applicable to any purchase of a Note for
which an agreement to purchase exists prior to the termination hereof
shall survive any termination of this Agreement. If at the time of
termination of this Agreement any Purchaser shall own any Notes with
the intention of selling them, the provisions of Section 4 shall remain
in effect until such Notes are sold by the Purchaser.
11. Notices.
________
All communications hereunder will be in writing and effective only on receipt,
and, if sent to any of you, will be mailed, delivered or telegraphed and
confirmed to such of you, at the address specified in Schedule I hereto; or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at Dial Tower, Phoenix, Arizona 85077, attention of the Vice
President-Treasurer.
12. Successors.
___________
This Agreement will inure to the benefit of and be binding upon the parties
hereto, their respective successors, the directors, officers, employees,
agents and controlling persons referred to in Section 8 hereof and, to the
extent provided in Section 7, any person who has agreed to purchase Notes, and
no other person will have any right or obligation hereunder.
13. Applicable Law.
_______________
This Agreement will be governed by and construed with the Laws of the State
of New York.
<PAGE> 25
25
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and you.
Very truly yours,
The Dial Corp
By: ______________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Salomon Brothers Inc
By: _______________________
Name:
Title:
Citibank Securities Markets, Inc.
By: _______________________
Name:
Title:
Goldman, Sachs & Co.
By: _______________________
Name:
Title:
Merrill Lynch, Pierce Fenner & Smith
Incorporated
By: _______________________
Name:
Title:
<PAGE> 26
SCHEDULE I
Commissions:
____________
The Company agrees to pay each Agent a commission equal to
the following percentage of the principal amount of each Note sold on
an agency basis by such Agent:
Term Commission Rate
____ _______________
To be determined by the parties hereto
Unless otherwise specified in the applicable Terms Agreement, the
discount or commission payable to a Purchaser shall be determined on
the basis of the commission schedule set forth above.
Address for Notice to you:
__________________________
Notices to Salomon Brothers Inc shall be directed to it at
Seven World Trade Center, New York, New York 10048, Attention of the
Medium-Term Note Department.
Notices to Citibank Securities Markets, Inc. shall be
directed to it at 55 Water Street, New York, New York 10041, Attention
of the Transaction Execution Department.
Notices to Goldman, Sachs & Co. shall be directed to it at 85
Broad Street, New York, New York 10004, Attention of the Medium-Term
Note Department.
Notices to Merrill Lynch, Pierce, Fenner & Smith Incorporated
shall be directed to it at North Tower, World Financial Center, New
York, New York 10281, Attention of the Medium-Term Note Department.
<PAGE> 27
EXHIBIT A
THE DIAL CORP
Medium-Term Note Administrative Procedures
__________________________________________
___________ , 199_
The Medium-Term Notes, Due More Than Nine Months From Date of
Issue (the "Notes") of The Dial Corp (the "Company") are to be offered
on a continuing basis. Salomon Brothers Inc, Citicorp Securities
Markets, Inc., Goldman Sachs & Co. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as agents (each an "Agent"), have agreed to solicit
purchases of Notes issued in fully registered form. The Agents will not
be obligated to purchase Notes for their own account. The Notes are
being sold pursuant to a Selling Agency Agreement between the Company
and the agents named therein (including the Agents) dated the date
hereof (the "Agency Agreement"). The Notes will rank equally with all
other unsecured and unsubordinated debt of the Company and have been
registered with the Securities and Exchange Commission (the
"Commission"). The Notes will be issued under an Indenture dated as of
April 1, 1993 (the "Indenture"), between the Company and The Chase
Manhattan Bank, N.A., as trustee (the "Trustee").
The Agency Agreement provides that Notes may also be
purchased by an Agent acting solely as principal and not as agent. In
the event of any such purchase, the functions of both the Agent and the
beneficial owner under the administrative procedures set forth below
shall be performed by such Agent acting solely as principal, unless
otherwise agreed to between the Company and such Agent acting as
principal.
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to
the Holder thereof or a Person designated by such Holder (a
"Certificated Note"). An owner of a Book-Entry Note will not be
entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms
of, the solicitation of orders by the Agents and the sale as a result
thereof by the Company are explained below. Administrative and record-
keeping responsibilities will be handled for the Company by its
Treasury Department. The Company will advise the Agents and the
Trustee in writing of those persons handling administrative
responsibilities with whom the Agents and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
delivery.
<PAGE> 28
A-2
Administrative procedures and specific terms of the offering
are explained below. Book-Entry Notes will be issued in accordance
with the administrative procedures set forth in Part I hereof, as
adjusted in accordance with changes in DTC's operating requirements,
and Certificated Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof. Unless
otherwise defined herein, terms defined in the Indenture and the Notes
shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero,
are referred to herein as "Fixed Rate Notes". Notes for which interest
is calculated on the basis of a floating interest rate are referred to
herein as "Floating Rate Notes". To the extent the procedures set
forth below conflict with the provisions of the Notes, the Indenture,
DTC's operating requirements or the Agency Agreement, the relevant
provisions of the Notes, the Indenture, DTC's operating requirements
and the Agency Agreement shall control.
PART I
Administrative Procedures for
_____________________________
Book-Entry Notes
________________
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee
will perform the custodial, document control and administrative
functions described below, in accordance with its respective
obligations under a Letter of Representations from the Company and the
Trustee to DTC dated as of the date hereof and a Medium-Term Note
Certificate Agreement between the Trustee and DTC and its obligations
as a participant in DTC, including DTC's Same-Day Funds Settlement
system ("SDFS").
Issuance: On any date of settlement (as defined under
_________ "Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons
(a "Global Security") representing up to
$150,000,000 principal amount of all such Book-
Entry Notes that have the same original issue date,
original issue discount provisions, if any,
Interest Payment Dates, Regular Record Dates,
Interest Payment Period, redemption, repayment and
extension provisions, if any, Maturity Date, and,
in the case of Fixed Rate Notes, interest rate, or,
in the case of Floating Rate Notes, initial
interest rate, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or
Spread
<PAGE> 29
A-3
Multiplier, if any, minimum interest rate, if any, and
maximum interest rate, if any (collectively, the "Terms").
Each Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each Global
Security will bear an original issue date, which will be
(i) with respect to an original Global Security (or any
portion thereof), the original issue date specified in
such Global Security and (ii) following a consolidation
of Global Securities, with respect to the Global Security
resulting from such consolidation, the most recent
Interest Payment Date to which interest has been
paid or duly provided for on the predecessor Global
Securities, regardless of the date of authentication of
such resulting Global Security. No Global Security will
represent (i) both Fixed Rate and Floating Rate Book-Entry
Notes or (ii) any Certificated Note.
Identification The Company has arranged with the CUSIP Service Bureau
______________ of Standard & Poor's Corporation (the "CUSIP Service
Numbers: Bureau") for the reservation of a series of CUSIP
________ numbers, which series consists of approximately 900 CUSIP
numbers and relates to Global Securities representing
Book-Entry Notes and book-entry medium-term notes issued
by the Company with other series designations. The
Trustee, the Company and DTC have obtained from the CUSIP
Service Bureau a written list of such reserved CUSIP
numbers. The Company will assign CUSIP numbers to Global
Securities as described below under Settlement Procedure
"B". DTC will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Company has assigned to
Global Securities. The Trustee will notify the Company
at any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Securities,
and, if it deems necessary the Company will reserve
additional CUSIP numbers for assignment to Global
Securities. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such
additional CUSIP numbers to the Trustee and DTC.
Registration: Global Securities will be issued only in fully
_____________ registered form without coupons. Each Global Security
will be registered in
<PAGE> 30
A-4
the name of CEDE & CO., as nominee for DTC, on the
securities register for the Notes maintained under the
Indenture. The beneficial owner of a Book-Entry Note (or
one or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with
respect to such Book-Entry Note, the "Participants") to act
as agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions provided
by such Participants, a credit balance with respect to such
beneficial owner in such Book-Entry Note in the account
of such Participants. The ownership interest of such
beneficial owner (or such participant) in such Book-Entry
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
__________ by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
__________ Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached to
the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more
outstanding Global Securities that represent (A)
Fixed Rate Book-Entry Notes having the same Terms
and for which interest has been paid to the same
date or (B) Floating Rate Book-Entry Notes having
the same Terms and for which interest has been paid
to the same date, (ii) a date, occurring at least
thirty days after such written notice is delivered
and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which
such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new
CUSIP number, obtained from the Company, to be
assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its
participants
<PAGE> 31
A-5
(including the Trustee) a written reorganization
notice to the effect that such exchange will occur on
such date. Prior to the specified exchange date,
the Trustee will deliver to the CUSIP Service Bureau
a written notice setting forth such exchange date
and such new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global Securities
to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Global Securities for a single Global Security
bearing the new CUSIP number and the CUSIP numbers
of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $150,000,000 in
aggregate principal amount, one Global Security
will be authenticated and issued to represent each
$150,000,000 of principal amount of the exchanged
Global Securities and an additional Global Security
will be authenticated and issued to represent any
remaining principal amounts of such Global
Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not less
___________ than nine months nor more than thirty years after
the Original Issue Date for such Note. A Floating
Rate Book-Entry Note will mature only on an
Interest Payment Date for such Note.
Denominations: Book-Entry Notes will be issued in principal
______________ amounts of $1,000 or any amount in excess thereof
that is an integral multiple of $1,000. Global
Securities will be denominated in principal amounts
not in excess of $150,000,000. If one or more Book-
Entry Notes having an aggregate principal amount in
excess of $150,000,000 would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be
authenticated and issued to represent each
$150,000,000 principal amount of such Book-Entry
Note or Notes and an additional Global Security
will be authenticated and issued to represent any
remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global
Securities representing such Book-
<PAGE> 32
A-6
Entry Note or Notes shall be assigned the same
CUSIP number.
Interest: General.
_________ ________
Interest, if any, on each Book-Entry Note
will accrue from the original issue date for the
first interest period or the last date to which
interest has been paid, if any, for each subsequent
interest period, on the Global Security
representing such Book-Entry Note, and will be
calculated and paid in the manner described in such
Book-Entry Note and in the Prospectus (as defined
in the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Unless otherwise
specified therein, each payment of interest on a
Book-Entry Note will include interest accrued to
but excluding the Interest Payment Date (provided
that, in the case of Floating Rate Book-Entry Notes
which reset daily or weekly, interest payments will
include accrued interest to but excluding the
Regular Record Date immediately preceding the
Interest Payment Date) or to but excluding Maturity
(other than a Maturity of a Fixed Rate Book-Entry
Note occurring on the 31st day of a month, in which
case such payment of interest will include interest
accrued to but excluding the 30th day of such
month). Interest payable at the Maturity of a Book-
Entry Note will be payable to the Person to whom
the principal of such Note is payable. Standard &
Poor's Corporation will use the information
received in the pending deposit message described
under Settlement Procedure "C" below in order to
include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate (daily or
weekly) bond report published by Standard & Poor's
Corporation.
Regular Record Dates.
_____________________
The Regular Record Date with
respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding
such Interest Payment Date (whether or not a
Business Date).
Interest Payment Dates on Fixed Rate Book-Entry Notes.
______________________________________________________
Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest payments
on Fixed Rate Book-Entry
<PAGE> 33
A-7
Notes will be made semiannually on January 15 and
July 15 of each year and at Maturity; provided,
however, that if an Interest Payment Date for a Fixed
Rate Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue
on such payment for the period from and after such
Interest Payment Date; provided further that, in the
case of a Fixed Rate Book-Entry Note issued between a
Regular Record Date and an Interest Payment Date,
the first interest payment will be made on the Interest
Payment Date following the next succeeding Regular
Record Date.
Interest Payment Dates on Floating Rate Book-Entry Notes.
_________________________________________________________
Interest payments will be made on Floating
Rate Book-Entry Notes monthly, quarterly,
semiannually or annually. Unless otherwise agreed
upon, interest will be payable, in the case of
Floating Rate Book-Entry Notes with a monthly
Interest Payment Period, on the third Wednesday of
each month; with a quarterly Interest Payment
Period, on the third Wednesday of March, June,
September and December of each year; with a
semiannual Interest Payment Period on the third
Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and with an annual
Interest Payment Period, on the third Wednesday of
the month specified pursuant to Settlement
Procedure "A" below; provided, however, that if an
Interest Payment Date for a Floating Rate Book-
Entry Note would otherwise be a day that is not a
Business Day with respect to such Floating Rate
Book-Entry Note, such Interest Payment Date will be
the next succeeding Business Day with respect to
such Floating Rate Book-Entry Note, except in the
case of a Floating Rate Book-Entry Note for which
the Base Rate is LIBOR, if such Business Day is in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day; and provided further that, in the
case of a Floating Rate Book-Entry Note issued
between a Regular Record Date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding Regular Record Date.
<PAGE> 34
A-8
Notice of Interest Payment and Regular Record
Dates. On the first Business Day of January,
April, July and October of each year, the Trustee
will deliver to the Company and DTC a written list
of Regular Record Dates and Interest Payment Dates
that will occur with respect to Book-Entry Notes
during the six-month period beginning on such first
Business Day. Promptly after each Interest
Determination Date for Floating Rate Book-Entry
Notes, the Trustee, as Calculation Agent, will
notify Standard & Poor's Corporation of the
interest rates determined on such Interest
Determination Date.
Calculation of Fixed Rate Book-Entry Notes.
______________ ____________________________
Interest:
________
Interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated on the
basis of a 360-day year of twelve 30-day months.
Floating Rate Book-Entry Notes.
_______________________________
Interest rates on Floating Rate Book-Entry Notes will be
determined as set forth in the form of Notes. Interest on
Floating Rate Book-Entry Notes, except as otherwise
set forth therein, will be calculated on the basis
of actual days elapsed and a year of 360 days
except that in the case of a Floating Rate Book-
Entry Note for which the Base Rate is Treasury
Rate, interest will be calculated on the basis of
the actual number of days in the year.
Payments of Payment of Interest Only.
___________ _________________________
Principal and
_____________
Interest:
_________ Promptly after each Regular Record Date, the Trustee will
deliver to the Company and DTC a written notice setting
forth, by CUSIP number, the amount of interest to be paid
on each Global Security on the following Interest Payment
Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such
amounts. DTC will confirm the amount payable on
each Global Security on such Interest Payment Date
by reference to the appropriate (daily or weekly)
bond reports published by Standard & Poor's
Corporation. The Company will pay to the Trustee,
as paying agent, the total amount of interest due
on such Interest Payment Date (other than at
Maturity), and the Trustee will pay such amount to
DTC, at
<PAGE> 35
A-9
the times and in the manner set forth below under
"Manner of Payment".
Payments at Maturity.
_____________________
On or about the first Business Day of each month, the
Trustee will deliver to the Company and DTC a written list
of principal and interest to be paid on each Global
Security maturing (on a Maturity or Redemption Date
or otherwise) in the following month. The Trustee,
the Company and DTC will confirm the amounts of
such principal and interest payments with respect
to each such Global Security on or about the fifth
Business Day preceding the Maturity of such Global
Security. On or before Maturity, the Company will
pay to the Trustee, as paying agent, the principal
amount of such Global Security, together with
interest due at such Maturity. The Trustee will
pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment".
If any Maturity of a Global Security representing
Book-Entry Notes is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Maturity. Promptly after payment to DTC
of the principal and interest due at Maturity of
such Global Security, the Trustee will cancel such
Global Security in accordance with the Indenture
and so advise the Company. If the Maturity of a
Book-Entry Note is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Maturity.
Manner of Payment.
__________________
The total amount of any principal and interest due on
Global Securities on any Interest Payment Date or at
Maturity shall be paid by the Company to the Trustee in
immediately available funds no later than 9:30 A.M.
(New York City time) on such date. The Company will make
such payment on such Global Securities by
instructing the Trustee to withdraw funds from an
account maintained by the Company at Citibank, N.A.
or by wire transfer to the Trustee. The Company
will confirm any such
<PAGE> 36
A-10
instructions in writing to the Trustee. Prior to
10 A.M. (New York City time) on the date of Maturity
or as soon as possible thereafter, the Trustee will
pay by separate wire transfer (using Fedwire message
entry instructions in a form previously specified
by DTC) to an account at the Federal Reserve Bank of
New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of
principal (together with interest thereon) due on a
Global Security on such date. On each Interest Payment
Date (other than at Maturity) interest payments
shall be made to DTC, in funds available for
immediate use by DTC, in accordance with existing
arrangements between the Trustee and DTC. On each
such date DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts
in funds available for immediate use to the
respective Participants in whose names the Book-
Entry Notes represented by such Global Securities
are recorded in the book-entry system maintained by
DTC. Neither the Company (as issuer or as paying
agent) nor the Trustee shall have any direct
responsibility or liability for the payment by DTC
to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes.
__________________
The amount of any taxes required under applicable law to
be withheld from any interest payment on a Book-Entry Note
will be determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
Procedure upon Company Notice to Trustee Regarding Exercise
______________ ____________________________________________
Company's of Optional Redemption.
_________ _______________________
Exercise of
___________ At least 45 days prior to the date on which it intends to
Optional redeem a Book-Entry Note, the Company will notify the
________ Trustee that it is exercising such option with respect to
Redemption: such Book-Entry Note on such date.
___________
Trustee Notice to DTC Regarding Company's Exercise
__________________________________________________
of Optional Redemption.
_______________________
After receipt of notice that the Company is exercising its
option to redeem a Book-Entry
<PAGE> 37
A-11
Note, the Trustee will, at least 30 days before the
redemption date for such Book-Entry Note, hand
deliver to DTC a notice identifying such Book-Entry
Note by CUSIP number and informing DTC of the
Company's exercise of such option with respect to such
Book-Entry Note.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit with
such Trustee an amount of money sufficient to pay
the redemption price, plus interest accrued to such
redemption date, for all the Book-Entry Notes or
portions thereof which are to be repaid on such
redemption date. Such Trustee will use such money
to repay such Book-Entry Notes pursuant to the
terms set forth in such Notes.
Payments of Trustee Notice to Company of Option to Be Repaid.
___________ _________________________________________________
Principal and
_____________ Upon receipt of notice of exercise of the option
Interest upon for repayment and the Global Securities representing
___________ the Book-Entry Notes so to be repaid as set forth
Exercise of in such Notes, the Trustee shall (unless such notice
________ was received pursuant to the Company's exercise
Optional of an optional reset or an optional extension of
__________ maturity, in each of which cases the relevant
Repayment: procedures set forth above are to be followed) give
__________ notice to the Company not less than 20 days prior
to each Optional Repayment Date of such Optional
Repayment Date and of principal amount of Book-
Entry Notes to be repaid on such Optional Repayment
Date.
Deposit of Repayment Price.
___________________________
On or prior to any Optional Repayment Date, the Company
shall deposit with such Trustee an amount of money
sufficient to pay the optional repayment price, and accrued
interest thereon to such date, of all the Book-
Entry Notes or portions thereof which are to be
repaid on such date. Such Trustee will use such
money to repay such Book-Entry Notes pursuant to
the terms set forth in such Notes.
<PAGE> 38
A-12
Procedure for The Company and the Agents will discuss from time
_____________ to time the aggregate principal amount of, the
Rate Setting issuance price of, and the interest rates to be borne
____________ by, Book-Entry Notes that may be sold as a result of
and Posting: the solicitation of orders by the Agents. If the Company
____________ decides to set prices of, and rates borne by, any
Book-Entry Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates
to be referred to herein as "posting") or if the Company
decides to change prices or rates previously posted
by it, it will promptly advise the Agents of the
prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each
______________ Agent will advise the Company promptly by telephone of
Rejection of all orders to purchase Book-Entry Notes received by
____________ such Agent, other than those rejected by it in
Orders: whole or in part in the reasonable exercise of its
_______ discretion. Unless otherwise agreed by the Company
and the Agents, the Company has the right to accept
orders to purchase Book-Entry Notes and may reject
any such orders in whole or in part.
Preparation of If any order to purchase a Book-Entry Note is
______________ accepted by or on behalf of the Company, the
Pricing Company will prepare a pricing supplement (a "Pricing
_______ Supplement") reflecting the applicable interest rates
Supplement: and other terms of such Book-Entry Note and will
___________ arrange to have ten copies thereof filed with the
Commission in accordance with the applicable paragraph
of Rule 424(b) under the Act and will supply at least
ten copies thereof (and additional copies if requested)
to the Agent which presented the order (the "Presenting
Agent"). The Presenting Agent will cause a Prospectus
and Pricing Supplement to be delivered to the purchaser
of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to the Prospectuses prior to
their use. Outdated Pricing Supplements (other
than those retained for files) will be destroyed.
<PAGE> 39
A-13
Suspension of The Company reserves the right, in its sole
_____________ discretion, to instruct the Agents to suspend at
Amendment or any time, for any period of time or permanently,
____________ the solicitation of orders to purchase Book-Entry Notes.
Supplement: Upon receipt of such instructions, the Agents will
___________ forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents and the Trustee whether
such orders may be settled and whether copies of
the Prospectus as in effect at the time of the
suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the
settlement of such orders. The Company will have
the sole responsibility for such decision and for
any arrangements that may be made in the event that
the Company determines that such orders may not be
settled or that copies of such Prospectus may not
be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Agency
Agreement) or the Prospectus, it will promptly
advise the Agents and furnish the Agents with the
proposed amendment or supplement and with such
certificates and opinions as are required, all to
the extent required by and in accordance with the
terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company may
file with the Commission any such supplement to the
Prospectus relating to the Notes. The Company will
provide the Agents and the Trustee with copies of
any such supplement, and confirm to the Agents that
such supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule
424(b).
Procedures for When the Company has determined to change the
______________ interest rates of Book-Entry Notes being offered,
Rate Changes: it will promptly advise the Agents and the Agents
_____________ will forthwith suspend
<PAGE> 40
A-14
solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the
Agents of the new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement
___________ relating to a Book-Entry Note must accompany or
Prospectus: precede the earliest of any written offer of such
___________ Book-Entry Note, confirmation of the purchase of such
Book-Entry Note and payment for such Book-Entry Note by
its purchaser. If notice of a change in the terms
of the Book-Entry Notes is received by the Agents
between the time an order for a Book-Entry Note is
placed and the time written confirmation thereof is
sent by the Presenting Agent to a customer or his
agent, such confirmation shall be accompanied by a
Prospectus and Pricing Supplement setting forth the
terms in effect when the order was placed. Subject
to "Suspension of Solicitation; Amendment or
Supplement" above, the Presenting Agent will
deliver a Prospectus and Pricing Supplement as
herein described with respect to each Book-Entry
Note sold by it. The Company will make such
delivery if such Book-Entry Note is sold directly
by the Company to a purchaser (other than an
Agent).
Confirmation: For each order to purchase a Book-Entry Note
____________ solicited by any Agent and accepted by or on behalf
of the Company, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available
___________ funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Book-Entry Note shall constitute
"settlement" with respect to such Book-Entry Note.
All orders accepted by the Company will be settled
on the fifth Business Day following the date of
sale of such Book-Entry Note pursuant to the
timetable for
<PAGE> 41
A-15
settlement set forth below unless the Company and
the purchaser agree to settlement on another day
which shall be no earlier than the next Business Day
following the date of sale.
Settlement Settlement procedures with regard to each Book-
__________ Entry Note sold by the Company through any Agent,
Procedures: as agent, shall be as follows:
___________
A. The Presenting Agent will advise the Company
by telephone of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the Base of a Fixed Rate Book-Entry
Note, the interest rate or, in the case
of a Floating Rate Book-Entry Note, the
Base Rate, initial interest rate (if
known at such time), Index Maturity,
Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any) and
Maximum Interest Rate (if any).
4. Interest Payment Dates and the Interest
Payment Period.
5. Redemption, repayment and extension
provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined
as provided in Section 2 of the Agency
Agreement.
<PAGE> 42
A-16
9. Whether such Book-Entry Note is issued at
an original issue discount and, if so,
the total amount of OID, the yield to
maturity and the initial accrual period
OID.
B. The Company will assign a CUSIP number to the
Global Security representing such Book-Entry
Note and then advise the Trustee by telephone
(confirmed in writing at any time on the same
date) or electronic transmission of the
information set forth in Settlement Procedure
"A" above, such CUSIP number and the name of
the Presenting Agent. The Company will also
notify the Presenting Agent by telephone of
such CUSIP number as soon as practicable.
Each such communication by the Company shall
constitute a representation and warranty by
the Company to the Trustee and the Presenting
Agent that (i) such Note is then, and at the
time of issuance and sale thereof will be,
duly authorized for issuance and sale by the
Company and (ii) such Note, and the Global
Security representing such Note, will conform
with the terms of the Indenture for such Note.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal
System providing the following settlement
information to DTC (which shall route such
information to Standard & Poor's Corporation),
the Presenting Agent and, upon request, the
Trustee:
1. The information set forth in Settlement
procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such
Book-Entry Note, number of days by which
such date succeeds the related Regular
Record Date
<PAGE> 43
A-17
and amount of interest payable on such
Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
D. To the extent the Company has not already done
so, the Company will deliver to the Trustee a
Global Security in a form that has been
approved by the Company, the Agents and the
Trustee.
E. The Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as
instructed by DTC, if not already set forth
thereon, and authenticate the Global Security
representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to the
Trustee's participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Book-Entry
Note to the Trustee's participant account and
credit such Book-Entry Note to the Presenting
Agent's participant account and (ii) debit the
Presenting Agent's settlement account and
credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry
Note less the Presenting Agent's commission.
The entry of such a deliver order shall
constitute a representation and warranty by
the Trustee to DTC that (i) the Global
Security representing such Book-Entry Note has
been issued and authenticated and (ii) the
Trustee is holding such Global Security
pursuant to the Medium-Term
<PAGE> 44
A-18
Note Certificate Agreement between the Trustee
and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting Agent's
participant account and credit such Book-Entry
Note to the participant accounts of the
Participants with respect to such Book-Entry
Note and (ii) to debit the settlement accounts
of such Participants and credit the settlement
account of the Presenting Agent for an amount
equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. The Trustee will, upon receipt of funds from
the Presenting Agent in accordance with
Settlement Procedure "G", wire transfer to the
account of the Company maintained at Citibank,
N.A., New York, N.Y. funds available for
immediate use in the amount transferred to the
Trustee in accordance with Settlement
Procedure "G".
K. The Presenting Agent will confirm the purchase
of such Book-Entry Note to the purchaser
either by transmitting to the Participants
with respect to such Book-Entry Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement For orders of Book-Entry Notes solicited by any
__________ Agent and accepted by the Company for settlement
Procedures on the first Business Day after the sale date,
__________ Settlement Procedures "A" through "K" set forth
Timetable: above shall be completed as soon as
__________
<PAGE> 45
A-19
possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
_________ ____
A 11:00 A.M. on the sale
date
B 12:00 Noon on the sale
date
C 2:00 P.M. on the sale
date
D 3:00 P.M. on the day
before settlement
E 9:00 A.M. on settlement
date
F 10:00 A.M. on settlement
date
G-H 2:00 P.M. on settlement
date
I 4:45 P.M. on settlement
date
J-K 5:00 P.M. on settlement
date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures "A",
"B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 12:00
Noon on the first Business Day after the sale date
and no later than 2:00 P.M. on the Business Day
before the settlement date, respectively. If the
initial interest rate for a Floating Rate Book-
Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon
as such rate has been determined but no later than
12:00 Noon and 2:00 P.M., respectively, on the
Business Day before the settlement date.
Settlement Procedure "I" is subject to extension in
accordance with any extension of
<PAGE> 46
A-20
Fedwire closing deadlines and in the other events
specified in SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled
or canceled, the Trustee will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no later
than 2:00 P.M. on the Business Day immediately
preceding the scheduled settlement date.
Failure to If the Trustee fails to enter an SDFS deliver order
__________ with respect to a Book-Entry Note pursuant to Settlement
Settle: Procedure "G", the Trustee may deliver to DTC,
_______ through DTC's Participant Terminal System, as soon
as practicable, a withdrawal message instructing
DTC to debit such Book-Entry Note to the Trustee's
participant account. DTC will process the
withdrawal message, provided that the Trustee's
participant account contains a principal amount of
the Global Security representing such Book-Entry
Note that is at least equal to the principal amount
to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will
cancel such Global Security in accordance with the
Indenture and so advise the Company and the
Trustee, and the Trustee will make appropriate
entries in its records. The CUSIP number assigned
to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and
not immediately reassigned. If a withdrawal
message is processed with respect to one or more,
but not all, of the Book-Entry Notes represented by
a Global Security, the Trustee will exchange such
Book-Entry Note for two Global Securities, one of
which shall represent such Book-Entry Notes and
shall be canceled immediately after issuance and
the other of which shall represent the other Book-
Entry Notes previously represented by the
surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect to
such Note by the
<PAGE> 47
A-21
beneficial purchaser thereof (or a Person, including
an indirect participant in DTC, acting on behalf of
such purchaser), such Participants and, in turn,
the Presenting Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing
the orders entered pursuant to Settlement Procedures
"H" and "G", respectively. Thereafter, the Trustee
will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
If such failure shall have occurred for any reason
other than a default by the Presenting Agent in the
performance of its obligations hereunder and under
the Agency Agreement, then the Company will
reimburse the Presenting Agent or the Trustee, as
applicable, on an equitable basis for the loss of
the use of the funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedure
"E", for the authentication and issuance of a
Global Security representing the other Book-Entry
Notes to have been represented by such Global
Security and will make appropriate entries in its
records.
Trustee Not Nothing herein shall be deemed to require the
___________ Trustee to risk or expend its own funds in
to Risk Funds: connection with any payment to the Company, DTC,
______________ the Agents or the purchaser, it being understood
by all parties that payments made by the Trustee
or the Trustee to the Company, DTC, the Agents or
the purchaser shall be made only to the extent
that funds are provided to the Trustee for such
purpose.
Authenticity of The Company will cause the Trustee to furnish the
_______________ Agents from time to time with the specimen
Signatures: signatures of each of the Trustee's officers,
___________ employees or agents who has been
<PAGE> 48
A-22
authorized by the Trustee to authenticate Book-
Entry Notes, but no Agent will have any obligation
or liability to the Company or the Trustee in
respect of the authenticity of the signature of
any officer, employee or agent of the Company or
the Trustee on any Book-Entry Note.
Payment of Each Agent shall forward to the Company, on a
__________ monthly basis, a statement of the out-of-pocket
Expenses: expenses incurred by such Agent during that month
_________ that are reimbursable to it pursuant to the terms
of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly basis.
Advertising The Company will determine with the Agents the
___________ amount of advertising that may be appropriate
Costs: in soliciting offers to purchase the Book-Entry
______ Notes. Advertising expenses will be paid by the
Company.
Periodic Periodically, the Trustee will send to the Company
________ a statement setting forth the principal amount of
Statements from Book-Entry Notes Outstanding as of that date and
_______________ setting forth a brief description of any sales of
the Trustee: Book-Entry Notes which the Company has advised the
____________ Trustee but which have not yet been settled.
<PAGE> 49
A-23
PART II
Administrative Procedures for Certificated Notes
________________________________________________
The Trustee will serve as registrar and transfer agent in connection
with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as
_________ of the date of its authentication by the Trustee.
Each Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the
settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost
or stolen Certificated Note, the Original Issue
Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully
_____________ registered form without coupons.
Transfers and A Certificated Note may be presented for transfer
_____________ or exchange at the principal corporate trust office
for Exchanges: in the City of New York of the Trustee.
______________ Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but
different authorized denominations without service
charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date not
___________ less than nine months nor more than thirty years
after the settlement date for such Note. A
Floating Rate Certificated Note will mature only on
an Interest Payment Date for such Note.
<PAGE> 50
A-24
Denominations: The denomination of any Certificated Note
______________ denominated in U.S. dollars will be a minimum of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in
any other currency will be specified pursuant to
"Settlement Procedures" below.
Interest: General.
_________ ________
Interest, if any, on each Certificated Note will accrue
from the original issue date for the first interest period
or the last date to which interest has been paid, if any,
for each subsequent interest period, and will be calculated
and paid in the manner described in such Note and in the
Prospectus, as supplemented by the applicable
Pricing Supplement. Unless otherwise specified
therein, each payment of interest on a Certificated
Note will include interest accrued to but excluding
the Interest Payment Date (provided that, in the
case of Certificated Notes which reset daily or
weekly, interest payments will include accrued
interest to but excluding the Regular Record Date
immediately preceding the Interest Payment Date) or
to but excluding Maturity (other than a Maturity of
a Fixed Rate Certificated Note occurring on the
31st day of a month, in which case such payment of
interest will include interest accrued to but
excluding the 30th day of such month).
Regular Record Dates.
_____________________
The Regular Record Dates with respect to any Interest
Payment Date shall be the date fifteen calendar days
immediately preceding such Interest Payment Date (whether
or not a Business Day).
Fixed Rate Certificated Notes.
______________________________
Unless otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on Fixed Rate
Certificated Notes will be made semiannually on January 15
and July 15 of each year and at Maturity; provided,
however, that if any Interest Payment Date for a
Fixed Rate Certificated Note is not a Business Day,
the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment
<PAGE> 51
A-25
Date; provided further that, in the case of a Fixed
Rate Certificated Note issued between a Regular
Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest
Payment Date following the next succeeding Regular
Record Date.
Floating Rate Certificated Notes.
_________________________________
Interest payments will be made on Floating Rate
Certificated Notes monthly, quarterly, semiannually
or annually. Interest will be payable, in the case
of Floating Rate Certificated Notes with a monthly
interest Payment Period, on the third Wednesday of
each month; with a quarterly Interest Payment Period,
on the third Wednesday of March, June, September and
December of each year; with a semiannual Interest
Payment Period, on the third Wednesday of the two
months specified pursuant to Settlement Procedure
"A" below; and with an annual Interest Payment
Period, on the third Wednesday of the month
specified pursuant to Settlement Procedure "A"
below; provided, however, that if an Interest
Payment Date for a Floating Rate Certificated Note
would otherwise be a day that is not a Business Day
with respect to such Floating Rate Certificated
Note, such Interest Payment Date will be the next
succeeding Business Day with respect to such
Floating Rate Certificated Note, except in the case
of a Floating Rate Certificated Note for which the
Base Rate is LIBOR, if such Business Day is in the
next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day; and provided further that, in the
case of a Floating Rate Certificated Note issued
between a Regular Record Date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding Regular Record Date.
Calculation of Fixed Rate Certificated Note.
______________ _____________________________
Interest:
_________ Interest on Fixed Rate Certificated Notes (including
interest for partial periods) will be calculated on the
basis of a 360-day year of twelve 30-day months.
<PAGE> 52
A-26
Floating Rate Certificated Notes.
_________________________________
Interest rate on Floating Rate Certificated Notes will
be determined as set forth in the form of Notes.
Interest on Floating Rate Certificated Notes,
except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed and
a year of 360 days, except that in the case of a
Floating Rate Certificated Note for which the Base
Rate is Treasury Rate, interest will be calculated
on the basis of the actual number of days in the
year.
Payments of Interest, if any, on each Certificated Note will be
___________ calculated and paid in the manner described in such
Principal and Note and in the Prospectus, as supplemented by the
_____________ applicable Pricing Supplement. Unless otherwise
Interest: provided in the Indenture or the Certificated Note,
_________ the first payment of interest on any Certificated
Note originally issued between a Record Date and an
Interest Payment Date will be made on the next
succeeding Interest Payment Date. Interest payable
at the Maturity of a Certificated Note will be
payable to the Person to whom the principal of such
Note is payable. Unless other arrangements are
made, all interest payments (excluding interest
payments made on the Maturity Date) will be made by
check mailed to the person entitled thereto as
provided above; provided, however, that the holder
of $10,000,000 (or the equivalent thereof in other
currencies) or more of Certificated Notes with
similar tenor and terms will be entitled to receive
payment by wire transfer in U.S. dollars.
Within 10 days following each Record Date, the
Trustee will inform the Company of the total amount
of the interest payments to be made by the Company
on the next succeeding Interest Payment Date. The
Trustee will provide monthly to the Company a list
of the principal and interest to be paid on
Certificated Notes maturing in the next succeeding
month.
<PAGE> 53
A-27
The Trustee will be responsible for withholding
taxes on interest paid on Certificated Notes as
required by applicable law.
If the Maturity of a Certificated Note is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the
period from and after such Maturity.
Procedures upon Company Notice to Trustee Regarding Exercise of
_______________ _______________________________________________
Company's Optional Redemption.
_________ ____________________
Exercise of
___________ At least 45 days prior to the date on which it intends
to redeem a Certificated Note, the Company will notify the
Optional Trustee that it is exercising such option with respect to
________ such Certificated Note on such date.
Redemption:
___________ Trustee Notice to Holders Regarding Company's
_____________________________________________
Exercise of Optional Redemption.
________________________________
After receipt of notice that the Company is exercising its
option to redeem a Certificated Note, the Trustee will, at
least 30 days before the redemption date for such
Certificated Note, mail a notice, first class,
postage prepaid, to the Holder of such Certificated
Note informing such Holder of the Company's
exercise of such option with respect to such
Certificated Note.
Deposit of Redemption Price.
____________________________
On or before any redemption date, the Company shall deposit
with such Trustee an amount of money sufficient to pay
the redemption price, plus interest accrued to such
redemption date, for all the Certificated Notes or
portions thereof and which are to be repaid on such
redemption date. Such Trustee will use such money
to repay such Certificated Notes pursuant to the
terms set forth in such Notes.
Payments of Trustee Notice to Company of Option to be Repaid.
___________ _________________________________________________
Principal and
_____________ Upon receipt of notice of exercise of the option for
Interest Upon repayment and the Global Securities representing
_____________ the Certificated Notes so to be repaid as set forth
Exercise of in such Notes, the Trustee shall (unless such
_____________ notice was received pursuant to the Company's
Optional Repayment:
___________________
<PAGE> 54
A-28
exercise of an optional reset or an optional
extension of maturity, in each of which cases the
relevant procedures set forth above are to be
followed) give notice to the Company not less than
20 days prior to each Optional Repayment Date of
such Optional Repayment Date and of the principal
amount of Certificated Notes to be repaid on such
Optional Repayment Date.
Deposit of Repayment Price.
___________________________
On or prior to any Optional Repayment Date, the Company
shall deposit with such Trustee an amount of money
sufficient to pay the optional repayment price, and accrued
interest thereon to such date, of all the
Certificated Notes or portions thereof which are to
be repaid on such date. Such Trustee will use such
money to repay such Certificated Notes pursuant to
the terms set forth in such Notes.
Procedure for The Company and the Agents will discuss from time
_____________ to time the aggregate principal amount of the
Rate Setting issuance price of, and the interest rates to be
____________ borne by, Notes that may be sold as a result of the
and Posting: solicitation of orders by the Agents. If the
____________ Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise
the Agents of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each
______________ Agent will advise the Company promptly by telephone
Rejection of of all orders to purchase Certificated Notes
____________ received by such Agent, other than those rejected
Orders: by it in whole or in part in the reasonable
_______ exercise of its discretion. Unless otherwise
agreed by the Company and the Agents, the Company
has the sole right to accept orders to purchase
Certificated Notes and may reject any such orders
in whole or in part. Before accepting any order to
purchase a Certificated Note to be
<PAGE> 55
A-29
settled in less than three Business Days, the Company
shall verify that the Trustee will have adequate time
to prepare and authenticate such Note.
Preparation If any order to purchase a Certificated Note is
___________ accepted by or on behalf of the Company, the Company
of Pricing will prepare a pricing supplement (a "Pricing Supplement")
__________ reflecting the interest rates and other terms of
Supplement: such Certificated Note and will arrange to have ten
___________ copies thereof filed with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act and will supply at least ten
copies thereof (and additional copies if requested)
to the Agent which presented the order (the
"Presenting Agent"). The Presenting Agent will
cause a Prospectus and Pricing Supplement to be
delivered to the purchaser of such Certificated
Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than
those retained for files) will be destroyed.
Suspension of The Company reserves the right, in its sole
_____________ discretion, to instruct the Agents to suspend
Solicitation; at any time for any period of time or permanently,
____________ the solicitation of orders to purchase Certificated
Amendment or Notes. Upon receipt of such instructions, the Agents
____________ will forthwith suspend solicitation until such time
Supplement: as the Company has advised them that such solicitation
___________ may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents and the Trustee whether
such orders may be settled and whether copies of
the Prospectus as in effect at the time of the
suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the
settlement of such orders. The Company will have
the sole
<PAGE> 56
A-30
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not be
settled or that copies of such Prospectus may not
be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents
with the proposed amendment or supplement and with
such certificates and opinions as are required, all
to the extent required by and in accordance with
the terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company may
file with the Commission any supplement to the
Prospectus relating to the Notes. The Company will
provide the Agents and the Trustee with copies of
any such supplement, and confirm to the Agents that
such supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule
424(b).
Procedure for When the Company has determined to change the
_____________ interest rates of Certificated Notes being offered,
Rate Changes: it will promptly advise the Agents and the Agents
_____________ will forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agents
of the new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement
___________ relating to a Certificated Note must accompany or
Prospectus: precede the earliest of any written offer of such
___________ Certificated Note, confirmation of the purchase of
such Certificated Note and payment for such
Certificated Note by its purchaser. If notice of a
change in the terms of the Certificated Notes is
received by the Agents between the time an order
for a Certificated Note is placed and the time
written confirmation thereof is sent by
<PAGE> 57
A-31
the Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus
and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to
"Suspension of Solicitation; Amendment or
Supplement" above, the Presenting Agent will
deliver a Prospectus and Pricing Supplement as
herein described with respect to each Certificated
Note sold by it. The Company will make such
delivery if such Certificated Note is sold directly
by the Company to a purchaser (other than any
Agent).
Confirmation: For each order to purchase a Certificated Note
_____________ solicited by any Agent and accepted by or on behalf
of the Company, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available
___________ funds in exchange for an authenticated Certificated
Note delivered to the Presenting Agent and the
Presenting Agent's delivery of such Certificated
Note against receipt of immediately available funds
shall, with respect to such Certificated Note,
constitute "settlement". All orders accepted by the
Company will be settled on the fifth Business Day
following the date of sale pursuant to the timetable
for settlement set forth below, unless the Company
and the purchaser agree to settlement on another day
which shall be no earlier than the next Business Day
following the date of sale.
Settlement Settlement Procedures with regard to each
__________ Certificated Note sold by the Company through any
Prosedures: Agent, as agent, shall be as follows:
___________
A. The Presenting Agent will advise the Company by
telephone of the following settlement
information, in time for the Trustee to prepare
and authenticate the required Note:
<PAGE> 58
A-32
1. Name in which such Certificated Note is to
be registered ("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the interest rate or, in the case of a
Floating Rate Certificated Note, the initial
interest rate (if known at such time), Base
Rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any) and Maximum Interest Rate (if any).
7. Interest Payment Dates and the Interest
Payment Period.
8. Specified Currency and whether the option to
elect payment in a Specified Currency
applies and if the Specified Currency is not
U.S. dollars, the authorized denominations.
9. Redemption, repayment or extension
provisions, if any.
10. Settlement date.
11. Price (including currency).
12. Presenting Agent's commission, determined as
provided in Section 2 of the Agency
Agreement.
<PAGE> 59
A-33
13. Whether such Certificated Note is issued at
an original issue discount, and, if so, the
total amount of OID, the yield to maturity
and the initial accrual period OID.
B. The Company will advise the Trustee by telephone
(confirmed in writing at any time on the sale
date) or electronic transmission of the
information set forth in Settlement Procedure
"A" above and the name of the Presenting Agent.
C. The Company will deliver to the Trustee a pre-
printed four-ply packet for such Certificated
Note, which packet will contain the following
documents in forms that have been approved by
the Company, the Agents and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Certificated Note
and will authenticate such Certificated Note and
deliver it (with the confirmation) and Stubs One
and Two to the Presenting Agent, all in
accordance with the written directions (or oral
instructions confirmed in writing on the next
Business Day) of the Company, and the Presenting
Agent will acknowledge receipt of the Note by
stamping or otherwise marking Stub One and
returning it to the Trustee. Such delivery will
be made only against such acknowledgment of
receipt. In the event that the instructions
given by the Presenting Agent for payment to the
account of the Company are revoked, the Company
will as promptly as possible wire transfer to
the account of the Presenting Agent an amount of
<PAGE> 60
A-34
immediately available funds equal to the amount
of such payment made.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation) to the
customer against payment in immediately payable
funds. The Presenting Agent will obtain the
acknowledgment of receipt of such Certificated
Note by retaining Stub Two.
F. The Trustee will send Stub Three to the Company
by first-class mail.
Settlement For orders of Certificated Notes solicited by any
__________ Agent, as agent, and accepted by the Company,
Procedures Settlement Procedures "A" through "F" set forth
__________ above shall be completed on or before the respective
Timetable: times (New York City time) set forth below:
__________
Settlement
Procedure Time
_________ ____
A 2:00 P.M. on the day
before settlement
B-C 3:00 P.M. on the day
before settlement
D 2:15 P.M. on settlement
date
E 3:00 P.M. on settlement
date
F 5:00 P.M. on settlement
date
Failure to If a purchaser fails to accept delivery of and make
__________ payment for any Certificated Note, the Presenting
Settle: Agent will notify the Company and the Trustee by
_______ telephone and return such
<PAGE> 61
A-35
Certificated Note to the Trustee. Upon receipt of such
notice, the Company will immediately wire transfer to the
account of the Presenting Agent an amount equal to the
amount previously credited to the account of Company in
respect of such Certificated Note. Such wire transfer will
be made on the settlement date, if possible, and in
any event not later than the Business Day following the
settlement date. If the failure shall have occurred for
any reason other than a default by the Presenting Agent
in the performance of its obligations hereunder and under
the Agency Agreement, then the Company will reimburse
the Presenting Agent or the Trustee, as appropriate,
on an equitable basis for its loss of the use of the
funds during the period when they were credited to the
account of the Company. Immediately upon receipt of
the Certificated Note in respect of which such
failure occurred, the Trustee will cancel such
Certificated Note in accordance with the Indenture
and so advise the Company and the Trustee, and the
Trustee will make appropriate entries in its
records.
Trustee Not Nothing herein shall be deemed to require the
___________ Trustee to risk or expend its own funds in connection
to Risk Funds: with any payment to the Company, the Agents or the
______________ purchaser, it being understood by all parties that
payments made by the Trustee to the Company, the Agents
or the purchaser shall be made only to the extent that
funds are provided to the Trustee for such purpose.
Authenticity of The Company will cause the Trustee to furnish
_______________ the Agents from time to time with the specimen
Signatures: signatures of each of the Trustee's officers, employees
___________ or agents who has been authorized by the Trustee to
authenticate Certificated Notes, but no Agent will have
any obligation or liability to the Company or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the
Company or the Trustee on any Certificated Note.
<PAGE> 62
A-36
Payment of Each Agent shall forward to the Company, on a
__________ monthly basis, a statement of the out-of-pocket expenses
Expenses: incurred by such Agent during that month that are
_________ reimbursable to it pursuant to the terms of the Agency
Agreement.
The Company will remit payment to the Agents currently
on a monthly basis.
Advertising The Company will determine with the Agents the
___________ amount of advertising that may be appropriate in
Costs: soliciting orders to purchase the Certificated
______ Notes. Advertising expenses will be paid by the
Company.
Periodic Periodically, the Trustee will send to the Company a
________ statement setting forth the principal amount
Statement from of Certificated Notes Outstanding as of that date
______________ and setting forth a brief description of any sales
the Trustee: of Certificated Notes which the Company has advised
____________ the Trustee but which have not yet been settled.
<PAGE> 63
EXHIBIT B
The Dial Corp
Medium Term Notes
Due More Than Nine Months
from Date of Issue
TERMS AGREEMENT
______________ 199_
Attention:
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated _________, 199_ between
Salomon Brothers Inc, ___________ and you, the undersigned agrees to
purchase the following Notes of The Dial Corp:
[Add additional terms as may be needed to identify Notes.]
[Specified Currency]:
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus
accrued interest from
_____, 199_]
Purchase Date and Time:
<PAGE> 64
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any,
in the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Agreement:
[Purchaser]
By:_________________________
Accepted:
The Dial Corp
By:_______________________
Title:
<PAGE> 1
S & S DRAFT
6/24/94
EXHIBIT 4.7
_____________________________________________________________
THE DIAL CORP
AND
CONTINENTAL BANK, NATIONAL ASSOCIATION,
TRUSTEE
___________________
INDENTURE
Dated as of June 1, 1994
___________________
Providing for the Issuance of
Convertible and Non-convertible
Subordinated Debt Securities
_____________________________________________________________
<PAGE> 2
This Cross Reference Sheet, showing the
location in the Indenture of the provisions inserted pursuant to Sections
310-318(u), inclusive, of the Trust Indenture Act of 1939, is not to be
considered a part of the Indenture.
TRUST INDENTURE ACT CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Sections of Trust Sections of
Indenture Act Indenture
----------------- ---------------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . 10.06
310(a)(2) . . . . . . . . . . . . . . . 10.06
310(a)(3) . . . . . . . . . . . . . Not applicable
310(a)(4) . . . . . . . . . . . . . Not applicable
310(b) . . . . . . . . . . . . . . . . . . 10.07
311 . . . . . . . . . . . . . . . . . . . 10.03
312. . . . . . . . . . . . . . . . . . . 9.02
313 . . . . . . . . . . . . . . . . . . 9.03
314(a) . . . . . . . . . . . . . . . . . 9.04
314(b) . . . . . . . . . . . . . . . Not applicable
314(c) . . . . . . . . . . . . . . . . . . 14.03
314(d) . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . . . 14.03
315(a) . . . . . . . . . . . . . . . . . . 10.01
315(b) . . . . . . . . . . . . . . . . . . 10.11
315(c) . . . . . . . . . . . . . . . . . . 10.01
315(d) . . . . . . . . . . . . . . . . . . 10.01
315(e) . . . . . . . . . . . . . . . . . 6.08
316(a) . . . . . . . . . . . . . . . 6.06 and 7.03
316(b) . . . . . . . . . . . . . . . . . 6.07
317(a) . . . . . . . . . . . . . . . 6.03 and 6.04
317(b) . . . . . . . . . . . . . . . . . 5.03
318(a) . . . . . . . . . . . . . . . . . . 14.05
</TABLE>
<PAGE> 3
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
PAGE
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authority of the Company to borrow money and
issue obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Corporate action taken to authorize issue
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Corporate action taken to authorize execution
of Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
ARTICLE ONE
DEFINITIONS
<TABLE>
<S> <C> <C>
SECTION 1.01. Terms, unless otherwise defined, to have
meanings assigned in the Trust Indenture
Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
</TABLE>
<TABLE>
<S> <C> <C>
SECTION 1.02. Definitions:
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Mandatory Sinking Fund Payment . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
__________________________________
* The Table of Contents is not part of the Indenture.
<PAGE> 4
ii
<TABLE>
<S> <C>
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Optional Sinking Fund Payment . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . . . . 6
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Co-Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register; Security Registrar . . . . . . . . . . . . . . . . . . 7
Securityholder; holder of Securities; holder;
registered holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act of 1939 or Trust Indenture Act . . . . . . . . . . . . 7
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 7
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER
AND EXCHANGE OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 2.01. Forms generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of payment, denominations
and numbering of Securities . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.02. Terms of series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.03. Certificate of authentication necessary
to make Securities valid . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.04. Form of certificate of authentication . . . . . . . . . . . . . . . . . . 11
SECTION 2.05. The Company to maintain register at office or agency
in New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Registration and registration of
transfer of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 12
Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Payment in connection with registration
of transfer or exchange of Securities . . . . . . . . . . . . . . . . . 13
Persons who may be treated as owners
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
<PAGE> 5
iii
<TABLE>
<S> <C> <C>
SECTION 2.06. Replacing Securities mutilated,
destroyed, lost or stolen . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.07. Rights to interest accrued and unpaid,
and to accrue, on Securities delivered
in exchange or substitution for other
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.08. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
ARTICLE THREE
ISSUE OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 3.01. Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . 17
</TABLE>
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
<TABLE>
<S> <C> <C>
SECTION 4.01. Applicability of right of redemption . . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. Notice of redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Interest to cease after redemption date . . . . . . . . . . . . . . . . . 20
Selection of Securities on partial redemption . . . . . . . . . . . . . . 20
SECTION 4.03. Securities of any series to be canceled
and discharged on specific conditions . . . . . . . . . . . . . . . . . 20
SECTION 4.04. Applicability of sinking fund . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.05. Mandatory sinking fund obligation . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.06. Optional redemption at sinking fund redemption
price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.07. Application of sinking fund payments . . . . . . . . . . . . . . . . . . . 22
</TABLE>
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
<TABLE>
<S> <C> <C>
SECTION 5.01. To pay principal, premium, if any,
and interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.02. To maintain office or agency in New York . . . . . . . . . . . . . . . . . 23
SECTION 5.03. The Company, or paying agent, to hold in
trust moneys for payment of principal,
premium, if any, and interest . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.04. Maintenance of corporate existence . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.05. Restrictions on consolidation, merger,
sale, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.06. Annual statement concerning compliance
</TABLE>
<PAGE> 6
iv
<TABLE>
<S> <C> <C>
with covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.07. Compliance with covenants and conditions
may be waived by holders of Securities . . . . . . . . . . . . . . . . . 26
</TABLE>
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
<TABLE>
<S> <C> <C>
SECTION 6.01. Events of default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.02. Acceleration of maturity of principal
on default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Waiver of acceleration of maturity . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.03. The Company, failing for 30 days to
pay any installment of interest or sinking
fund payment or failing to pay principal
when due, will pay to Trustee at its
request whole amount due . . . . . . . . . . . . . . . . . . . . . . . 28
Upon failure to pay, Trustee may recover
judgment for ratable benefit of Securityholders . . . . . . . . . . . . 29
SECTION 6.04. Trustee appointed attorney-in-fact for
Securityholders to file claims . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.05. Application of moneys collected by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.06. Securityholders may direct proceedings
and waive defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.07. Limitations on rights of Securityholders
to institute proceedings . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.08. Assessment of costs and attorneys' fees
in legal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.09. Remedies cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
</TABLE>
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
<TABLE>
<S> <C> <C>
SECTION 7.01. Evidence of action by Securityholders . . . . . . . . . . . . . . . . . . 33
SECTION 7.02. Proof of execution of instruments and
of holding of Securities . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.03. Securities owned by the Company or other
obligor on the Securities to be
disregarded in certain cases . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.04. Revocation by Securityholders of
consents to action. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
<PAGE> 7
v
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
<TABLE>
<S> <C> <C>
SECTION 8.01. Purposes of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 8.02. Call of meetings by Trustee. . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.03. Call of meetings by Company or Securityholders . . . . . . . . . . . . . . 35
SECTION 8.04. Qualifications for voting . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.05. Regulation of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.07. No delay of rights by meeting . . . . . . . . . . . . . . . . . . . . . . 36
</TABLE>
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
<TABLE>
<S> <C> <C>
SECTION 9.01. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.02. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.04. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
ARTICLE TEN
CONCERNING THE TRUSTEE
<TABLE>
<S> <C> <C>
SECTION 10.01. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 10.02. Not Responsible for Recitals
or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 10.03. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 10.04. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 10.05. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 10.06. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 10.07. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 10.08. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . 42
SECTION 10.09. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 10.10. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . 44
SECTION 10.11. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
</TABLE>
<PAGE> 8
vi
ARTICLE ELEVEN
DEFEASANCE
<TABLE>
<S> <C> <C>
SECTION 11.01. Discharge of Indenture upon payment of Securities . . . . . . . . . . . . 46
SECTION 11.02. Discharge of Securities of any series
upon deposit of moneys . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.03. Interest on moneys deposited . . . . . . . . . . . . . . . . . . . . . . . 47
Moneys unclaimed for three years to be
returned to the Company . . . . . . . . . . . . . . . . . . . . . . . . 47
Moneys deposited with Trustee to pay
principal, premium, if any, or interest to be held in trust . . . . . . 47
</TABLE>
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
<TABLE>
<S> <C> <C>
SECTION 12.01. Liability solely corporate. . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
<TABLE>
<S> <C> <C>
SECTION 13.01. Without consent of Securityholders, the
Company and Trustee may enter into
supplemental indentures for specified
purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 13.02. Modification of Indenture by
supplemental indenture with consent
of Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 13.03. Upon request of the Company, Trustee to join
in execution of supplemental indenture . . . . . . . . . . . . . . . . . 50
SECTION 13.04. Effect of supplemental indenture . . . . . . . . . . . . . . . . . . . . . 51
SECTION 13.05. Matters provided for in supplemental
indenture may be noted on Securities,
or new Securities appropriately
modified may be issued in exchange
for outstanding Securities. . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 13.06. Supplemental indentures to conform to
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 13.07. Effect of supplemental indenture on
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 51
</TABLE>
<PAGE> 9
vii
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
<TABLE>
<S> <C> <C>
SECTION 14.01. Consolidation, merger, sale or lease . . . . . . . . . . . . . . . . . . . 51
SECTION 14.02. Rights under Indenture confined
to parties and holders of Securities . . . . . . . . . . . . . . . . . . 52
SECTION 14.03. Evidence of compliance
with conditions precedent . . . . . . . . . . . . . . . . . . . . . . . 52
As evidence of compliance, Officers'
Certificate and Opinion of Counsel to
be furnished to Trustee . . . . . . . . . . . . . . . . . . . . . . . . 53
Contents of certificates and opinions
Trustee may examine books and records of
the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 14.04. Cancellation of Securities. . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 14.05. Provisions required by Trust Indenture
Act of 1939 to control . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 14.06. Action of authorized committee deemed to
be action of Board of Directors . . . . . . . . . . . . . . . . . . . . 54
SECTION 14.07. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 14.08. Act of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 14.09. Payments due on Non-Business days . . . . . . . . . . . . . . . . . . . . 55
SECTION 14.10. Execution in counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 14.11. Indenture deemed a New York contract . . . . . . . . . . . . . . . . . . . 56
</TABLE>
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 15.01. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 15.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities . . . . . . . . . . . . . . . 56
SECTION 15.03. Unconditional Obligation of the Company to
make Payments on Securities . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 15.04. Prior Payments of Senior Indebtedness upon
Maturity; No Payment on Securities upon
event of default on Senior Indebtedness . . . . . . . . . . . . . . . . 58
SECTION 15.05. Payments on Securities Permitted . . . . . . . . . . . . . . . . . . . . . 59
SECTION 15.06. Trustee as Holder of Senior Indebtedness . . . . . . . . . . . . . . . . . 60
SECTION 15.07. No Impairment of Right to Enforce Subordination
by Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . 60
SECTION 15.08. Authorization of Holders of Securities to Holders
of Senior Indebtedness and Trustee to Effect
Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
</TABLE>
<PAGE> 10
viii
<TABLE>
<S> <C> <C>
SECTION 15.09. No Fiduciary Duty by Trustee to Holders of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.10. All Provisions of Indenture Subject to this Article . . . . . . . . . . . 61
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ACKNOWLEDGEMENTS
</TABLE>
<PAGE> 11
INDENTURE, dated as of June 1, 1994, between
THE DIAL CORP, a corporation organized and existing under the laws of the State
of Delaware (hereinafter called the "Company"), party of the first part, and
Continental Bank, National Association, as trustee (hereinafter called the
"Trustee"), party of the second part.
RECITALS
The Company is authorized and empowered to
borrow money for its corporate purposes and to issue its bonds, debentures,
notes and other obligations for money so borrowed.
The Company has duly authorized the issue, in
one or more series as in this Indenture provided, from time to time of its
subordinated debt securities (hereinafter called the "Securities"), which may
be either convertible or non- convertible, and, to provide the general terms
and conditions upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this
Indenture.
The Trustee has power to enter into this
Indenture and to accept and execute the trusts herein created.
The Company represents that all acts and
things necessary to make the Securities, when executed by the Company and
authenticated and delivered by the Trustee as in this Indenture provided and
issued, the valid, binding and legal obligations of the Company, will, at the
time of such execution, authentication and delivery, have been done and
performed; that all acts and things necessary to constitute these presents a
valid indenture and agreement according to its terms have been done and
performed; that the execution of this Indenture has in all respects been duly
authorized and the issue hereunder of the Securities will, at the time of the
issue thereof, have in all respects been duly authorized; and that the Company,
in the exercise of each and every legal right and power in it vested, executes
this Indenture and proposes to make, execute, issue and deliver the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of
the acceptance and purchase of the Securities by the holders thereof, the
Company covenants and agrees with the Trustee, for the equal benefit of all the
holders from time to time of the Securities, without preference, priority or
distinction of any thereof over any other thereof by reason of priority in time
of issuance or negotiation, or otherwise, as follows:
<PAGE> 12
2
ARTICLE ONE
DEFINITIONS
SECTION 1.01.
Unless otherwise defined in this Indenture or
the context otherwise requires, all terms used herein shall have the meanings
assigned to them in the Trust Indenture Act of l939.
SECTION 1.02. Unless the context otherwise
requires, the terms defined in this Section 1.02 shall for all purposes of this
Indenture have the meanings hereinafter set forth, the following definitions to
be equally applicable to both the singular and the plural forms of any of the
terms herein defined:
Act: The term "Act", when used with respect
to any holders, has the meaning specified in Section
14.08.
Affiliate: The term "Affiliate" means, with
respect to any specified person, any other person
directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified person. For the purposes of this
definition, "control" when used with respect to any
specified person means the power to direct the
management and policies of such person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings
correlative to the foregoing.
Authenticating Agent: The term
"Authenticating Agent" means the Trustee and/or the
authenticating agent, if any, appointed by the
Trustee and acting pursuant to Section 10.10.
Board Resolution: The term "Board
Resolution" means a copy of a resolution or
resolutions certified by the Secretary or an
Assistant Secretary of the Company to have been duly
adopted by the Board of Directors or any committee of
the Board of Directors (or committee of officers or
other representatives of the Company, to the extent
that any such committee or committees have been
authorized by the Board of Directors to establish or
approve the matters contemplated by Section 2.02
hereof) and to be in full force and effect on the
date of such certification, and delivered to the
Trustee.
Business day: The term "business day" shall
mean a day which in The City of New York or Chicago
is not a day on which banking institutions are
authorized or obligated by law or executive order to
close.
<PAGE> 13
3
Capital Stock: The term "Capital Stock"
shall mean, with respect to any person, all Common
Stock and Preferred Stock of such person.
Commission: The term "Commission" means the
Securities and Exchange Commission, as from time to
time constituted, created under the Securities
Exchange Act of 1934 or, if at any time after the
execution of this Indenture such Commission is not
existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body
performing such duties at such time.
Common Stock: The term "Common Stock" shall
mean, with respect to any person, any and all shares,
interests and participations (however designated and
whether voting or non-voting) in such person's common
equity, whether now outstanding or issued after the
date of this Indenture, and includes, without
limitation, all series and classes of such common
stock.
Company: The term "Company" shall mean The
Dial Corp and, subject to the provisions of Section
14.01, shall also include its successors and assigns.
Depositary: With respect to the Securities
of any series issuable or issued in whole or in part
in global form, the person designated as Depositary
by the Company pursuant to Section 2.02 until a
successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each
person who is then a Depositary hereunder, and if at
any time there is more than one such person,
"Depositary" as used with respect to the Securities
of any such series shall mean the "Depositary" with
respect to the Securities of that series.
Event of default: The term "event of
default" shall have the meaning specified in Section
6.01.
Indebtedness: The term "Indebtedness" shall
mean, with respect to any person, (a) any liability
of such person (1) for borrowed money, or under any
reimbursement obligation, contingent or otherwise,
relating to an acceptance, letter of credit or
similar facilities, or (2) evidenced by a bond, note,
debenture or similar instrument (including a purchase
money obligation) given in connection with the
acquisition of any businesses, properties or assets
of any kind (other than a trade payable or a current
liability arising in the ordinary course of
business), or (3) for the payment of money relating
to a capitalized lease; (b) all obligations of such
person to purchase redeem, retire, defease or
otherwise make any payment in respect of any Capital
Stock of or other ownership or profit interest in
such person or any of its Affiliates or any warrants,
rights or options to acquire such Capital Stock,
valued, in the case of redeemable stock, at the
greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; (c) any
liability of others described in
<PAGE> 14
4
the preceding clause (a) that the person has guaranteed or that is otherwise
its legal liability; and (d) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (a), (b) and (c) above. For purposes of determining any particular
amount of Indebtedness under this definition, guarantees of (or obligations
with respect to letters of credit supporting) Indebtedness otherwise included
in the determination of such amount shall not also be included.
Indenture: The term "Indenture" or "this
Indenture" shall mean this instrument and all
indentures supplemental hereto.
Interest Payment Date: The term "Interest
Payment Date" when used with respect to any Security
shall mean the Stated Maturity of an installment of
interest on such Security.
Lien: The term "Lien" means any mortgage,
lien, charge, claim, security interest, pledge,
hypothecation, right of another under any conditional
sale or other title retention agreement, or any other
encumbrance affecting title to property.
Mandatory Sinking Fund Payment: The term
"Mandatory Sinking Fund Payment" shall have the
meaning specified in Section 4.04.
Maturity: The term "Maturity", with respect
to any Security, shall mean the date on which the
principal of such Security shall become due and
payable as therein and herein provided, whether by
declaration, call for redemption or otherwise.
Officers' Certificate: The term "Officers'
Certificate", when used with respect to the Company,
shall mean a certificate signed by the Chairman of
the Board of Directors, the President or any Vice
President and by the Treasurer, any Assistant
Treasurer, the Controller, any Assistant Controller,
the Secretary or any Assistant Secretary of the
Company.
Opinion of Counsel: The term "Opinion of
Counsel" shall mean an opinion in writing signed by
legal counsel, who may be counsel for the Company.
Optional Sinking Fund Payment: The term
"Optional Sinking Fund Payment" shall have the
meaning specified in Section 4.04.
Outstanding: The term "outstanding", when
used as of any particular time with reference to
Securities, shall mean, as of the date of
determination and subject to Section 7.03, all
Securities theretofore authenticated and delivered by
the Trustee under this Indenture, except
<PAGE> 15
5
(a) Securities or portions thereof for
which (i) funds, or as provided in Section
11.02 hereof, direct obligations of the
United States of America, sufficient to pay
the principal thereof, premium, if any,
thereon and all unpaid interest thereon to
Maturity or to the date fixed for the
redemption thereof shall have been deposited
in trust for such purpose as provided herein
with the Trustee or with any paying agent
(other than the Company) or shall have been
set aside and segregated in trust by the
Company (if the Company shall act as its own
paying agent) and (ii) in case of redemption,
notice of redemption thereof shall have been
duly given or provision satisfactory to the
Trustee for the giving of such notice shall
have been made;
(b) Securities which shall have been
cancelled or surrendered to the Trustee for
cancellation; and
(c) Securities in lieu of or in
substitution for which other Securities shall
have been authenticated and delivered
pursuant to Section 2.05 or 2.06;
provided, however, that in determining whether the
holders of the requisite principal amount of
Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or
any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
Person: The term "person" shall mean an
individual, a corporation, a partnership, a joint
venture, an association, a joint stock company, a
trust, an unincorporated organization or a government
or an agency or political subdivision thereof.
Preferred Stock: The term "Preferred Stock"
shall mean, with respect to any person, any and all
shares, interests, participations or other
equivalents (however designated) of such person's
preferred or preference stock whether now outstanding
or issued after the date of this Indenture, and
includes, without limitation, all classes and series
of preferred or preference stock.
<PAGE> 16
6
Principal Office of the Trustee: The term
"Principal Office of the Trustee", or other similar
term, shall mean the principal corporate trust office
of the Trustee at which its principal trust business
is administered. As of the date hereof, the
Principal Office of the Trustee is located at 231 S.
LaSalle St., Chicago, IL 60697 (telephone: (312)
828-7321 and telecopier: (312) 828-6528).
Record Date: The term "Record Date" shall
mean, with respect to any interest payable on any
Security on any Interest Payment Date, the close of
business on the date specified in such Security or,
in the case of defaulted interest, the close of
business on any subsequent record date established as
provided in Section 2.01 (in each case whether or not
such day is a business day).
Redemption Date: The term "Redemption Date"
when used with respect to any Security to be
redeemed, in whole or in part, shall mean the date
fixed for such redemption by or pursuant to this
Indenture and the terms of such Security.
Redemption Price: The term "Redemption
Price" when used with respect to any Security to be
redeemed shall mean the price (exclusive of accrued
interest) at which it is to be redeemed pursuant to
this Indenture and the terms of such Security.
Responsible Officers: The term "Responsible
Officers" of the Trustee hereunder shall mean and
include the chairman and any vice chairman of the
board of directors, the president, the chairman and
any vice chairman of the executive committee of the
board of directors, or any officer in the corporate
trust department of the Trustee customarily
performing functions similar to those performed by
the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter
is referred because of his knowledge of, and
familiarity with, a particular subject.
Restricted Subsidiary: The term "Restricted
Subsidiary" means any Subsidiary which is designated
as such by Board Resolution and at least a majority
of the shares of Voting Stock of which shall at the
time be owned, directly, by the Company or by one or
more Restricted Subsidiaries or by the Company and
one or more Restricted Subsidiaries.
Security: The term "Security" shall mean one
of the Securities duly authenticated by the Trustee
and delivered pursuant to the provisions of this
Indenture.
Security Co-Registrar: The term "Security
Co-Registrar" has the meaning specified in Section
2.05.
<PAGE> 17
7
Security Register; Security Registrar: The
terms "Security Register" and "Security Registrar"
have the respective meanings specified in Section
2.05.
Securityholder; holder of Securities; holder;
registered holder: The term "Securityholder" or
"holder of Securities" or "holder" or "registered
holder", with respect to a Security, shall mean the
person in whose name such Security or Securities
shall be registered in the register kept for that
purpose hereunder.
Senior Indebtedness: The term "Senior
Indebtedness" means the principal of (and premium, if
any) and unpaid interest on (i) indebtedness of the
Company (including indebtedness of others guaranteed
by the Company), whether outstanding on the date
hereof or thereafter created, incurred, assumed or
guaranteed, for money borrowed (other than the
indebtedness evidenced by the Securities outstanding
on the date hereof or thereafter created), unless in
the instrument creating or evidencing the same or
pursuant to which the same is outstanding it is
provided that such indebtedness is not senior or
prior in right of payment to the Securities or is
made subordinate to any other indebtedness of the
Company on the same or substantially the same basis
as the Securities are made subordinate and (ii)
renewals, extensions, modifications and refundings of
any such indebtedness.
Stated Maturity: The term "Stated Maturity"
when used with respect to any Security or any
installment of interest thereon shall mean the date
specified in such Security as the fixed date on which
the principal (or any portion thereof) of or premium,
if any, on such Security or such installment of
interest is due and payable.
Subsidiary: The term "Subsidiary" shall mean
any corporation at least a majority of the Voting
Stock of which shall at the time be owned, directly
or indirectly, by the Company, or one or more
Subsidiaries, or by the Company and one or more
Subsidiaries.
Trustee: The term "Trustee" shall mean the
trustee hereunder for the time being, whether
original or successor, and if at any time there is
more than one such trustee, "Trustee" as used with
respect to the Securities of any series shall mean
the trustee with respect to Securities of that
series.
Trust Indenture Act of 1939 or Trust
Indenture Act: The term "Trust Indenture Act of
1939" or "Trust Indenture Act" shall mean such Act as
amended from time to time except as provided in
Section 13.06 or otherwise required by law.
Unrestricted Subsidiary: The term
"Unrestricted Subsidiary" shall mean any Subsidiary
other than a Restricted Subsidiary.
<PAGE> 18
8
Voting Stock: The term "Voting Stock" means
stock of any class or classes (however designated)
having ordinary voting power for the election of a
majority of the members of the board of directors (or
any governing body) of such corporation, other than
stock having such power only by reason of the
happening of a contingency.
Certain other terms, relating principally to
provisions included in this Indenture in compliance with the Trust Indenture
Act of 1939, are defined in Article Ten.
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND
EXCHANGE OF SECURITIES
SECTION 2.01.
The Securities of each series shall be
issuable in registered form and shall be in substantially such form as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Securities may
be listed, or to conform to usage. The Securities shall be issued, except as
otherwise provided with respect to any series of Securities pursuant to Section
2.02, in the denomination of $1,000 and any larger denomination which is an
integral multiple of $1,000 approved by the Company, such approval to be
evidenced by the execution thereof.
If Securities of a series are issuable in
whole or in part in global form, any such Security may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges or increased to reflect the issuance of additional Securities. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made in such manner and by such person or persons, as shall be specified
therein or in the Company order of authentication delivered to the Trustee
pursuant to Section 2.04.
The person in whose name any Security is
registered at the close of business on any Record Date with respect to any
Interest Payment Date shall be entitled to receive the
<PAGE> 19
9
interest payable on such Interest Payment Date notwithstanding the cancellation
of such Security upon any transfer or exchange thereof subsequent to such
Record Date and prior to such Interest Payment Date; provided, however, that,
if and to the extent the Company shall default in the payment of the interest
due on such Interest Payment Date, the defaulted interest shall be paid to the
persons in whose names the outstanding Securities are registered on a
subsequent record date, such record date to be not less than 5 days prior to
the date of payment of such defaulted interest, established by notice given by
mail by or on behalf of the Company to the holders of Securities not less than
15 days preceding such subsequent record date.
The principal of and interest and premium, if
any, on the Securities shall be payable at each office or agency of the Company
designated pursuant to Section 5.02 for such purpose; provided, however, that
interest may at the option of the Company be paid by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register (including the records of any Security Co-Registrar). Such
payments will be made in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts.
SECTION 2.02.
The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Securities shall be subordinated in right of payment to Senior Indebtedness
as provided in Article Fifteen.
The Securities may be issued in one or more
series. There shall be established by or pursuant to a Board Resolution, and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the
series (which shall distinguish the Securities of the
series from the Securities of all other series,
except to the extent that additional Securities of an
existing series are being issued);
(b) any limit upon the aggregate
principal amount of the Securities of the series
which may be outstanding under this Indenture (except
as otherwise provided in Section 2.06, 2.08, 4.02 or
13.05);
(c) the date or dates on which the
principal of the Securities of the series is payable;
(d) the rate or rates at which the
Securities of the series shall bear interest, if any,
or the method by which such rate or rates shall be
determined, the date or dates from which such
interest shall accrue, or the method by which such
date or dates shall be determined, the interest
payment dates on which such interest shall be
<PAGE> 20
10
payable and the record dates for the determination of holders to whom interest
is payable;
(e) the place or places where the
principal of, premium, if any, and interest on
Securities of the series shall be payable;
(f) the price or prices at which, the
period or periods within which and the terms and
conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(g) the obligation, if any, of the
Company to redeem, purchase or repay Securities of
the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and
the price or prices at which the period or periods
within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such
obligation;
(h) if other than denominations of
$1,000 or any integral multiple thereof, the
denominations in which Securities of the series shall
be issuable;
(i) if other than the principal amount
thereof, the portion of the principal amount of the
Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof
pursuant to Section 6.02;
(j) the issuance of the Securities of
such series in whole or in part in global form and,
if so, the identity of the Depositary for such
Securities in global form, and the terms and
conditions, if any, upon which interests in such
Securities in global form may be exchanged, in whole
or in part, for the individual Securities represented
thereby;
(k) any deletions from, modifications of
or additions to the events of default or covenants of
the Company with respect to any of such Securities,
whether or not such events of default or covenants
are consistent with the events of default or
covenants set forth herein;
(l) if the Securities of such series
will be issuable upon the conversion of other
securities of the Company or upon the exercise of
warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(m) if the Securities of the series will
be convertible into or exchangeable for Common Stock
or other securities of the Company and, if so, the
terms and conditions upon which such Securities will
be so convertible or exchangeable; and
<PAGE> 21
11
(n) any other terms of the Securities of
the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise
be provided by or pursuant to such Board Resolution, and set forth in such
Officers' Certificate, or in any such indenture supplemental hereto. If any of
the terms of a series of Securities are established by action taken pursuant to
a Board Resolution, a copy of such Board Resolution shall be delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of such series. All Securities of any one series need not be issued
at the same time and, unless otherwise so provided by the Company, a series may
be reopened for issuances of additional Securities of such series or to
establish additional terms of such series of Securities.
SECTION 2.03.
The Securities shall be signed in the name
and on behalf of the Company by the manual or facsimile signature of its
Chairman of the Board of Directors, its President or one of its Vice
Presidents, under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise) which shall be
attested by the manual or facsimile signature of its Secretary, or one of its
Assistant Secretaries. The Securities shall then be delivered to the Trustee
or the Authenticating Agent for authentication by it, and thereupon, as
provided herein, the Trustee or the Authenticating Agent shall authenticate
and deliver such Securities. In case any officer of the Company who shall
have signed any of the Securities shall cease to be such officer of the
Company before the Securities so signed shall have been actually authenticated
and delivered by the Trustee or the Authenticating Agent, such Securities may
nevertheless be issued, authenticated and delivered as though the person who
signed such Securities had not ceased to be such officer of the Company; and
also any of the Securities may be signed on behalf of the Company by any person
who at the time of the execution of such Securities shall be the proper officer
of the Company, even though at the date of the execution of this Indenture such
person may not have been such officer of the Company.
SECTION 2.04.
Only such of the Securities as shall bear
thereon a certificate substantially in the form of the Trustee's certificate of
authentication hereinafter recited, executed by the Trustee or the
Authenticating Agent, shall be valid or become obligatory for any purpose or
entitle the holder thereof to any right or benefit under this Indenture, and
the certificate of authentication by the Trustee or the Authenticating Agent
upon any such Security executed on behalf of the Company as aforesaid shall be
conclusive evidence, and the only evidence, that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder thereof
is entitled to the benefits of this Indenture.
The Trustee's certificate of authentication
on all Securities shall be in substantially the following form:
<PAGE> 22
12
This is one of the Securities issued under
the Indenture described herein.
Continental Bank,
National Association,
as Trustee
By ____________________________
Authorized Signatory
or (if an Authenticating Agent
is appointed pursuant to
Section 10.10)
Continental Bank,
National Association,
as Trustee
By (Name of Agent) as
Authenticating Agent
By ____________________________
Authorized Signatory
SECTION 2.05.
The Company shall cause to be kept a register
(herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. Unless and
until otherwise determined by the Company, by Board Resolution, the Security
Register initially shall be kept at the Principal Office of the Trustee. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided. The Company may
appoint one or more "Security Co-Registrars" for such purpose. The Security
Registrar and any Security Co-Registrars are herein sometimes referred to, and
are appointed as, the "Security Registrar".
Upon surrender for registration of transfer
of any Security of any series at any office or agency of the Company designated
pursuant to Section 5.02 for such purpose or at the office of any Security
Co-Registrar, the Company shall execute and the Trustee or the Authenticating
Agent shall authenticate and deliver a Security or Securities of such series
for a like aggregate principal amount, in such authorized denomination or
denominations and registered in such name or names as may be requested. The
transfer of any security shall
<PAGE> 23
13
not be valid as against the Company or the Trustee unless registered at such
offices or agency by the registered holder, or by his attorney duly authorized
in writing.
Securities of any series in their several
authorized denominations are exchangeable for a Security or Securities of such
series in authorized denominations and of a like aggregate principal amount.
Securities to be exchanged as aforesaid shall be surrendered for that purpose
by the registered holder thereof at such offices or agency, and the Company
shall execute and the Trustee or the Authenticating Agent shall authenticate
and deliver in exchange therefor the Security or Securities in such authorized
denomination or denominations as the Securityholder making the exchange shall
have requested and shall be entitled to receive. The Company shall not be
required to make any exchange or effect registration of transfer of (i) any
Security which shall have been designated for redemption in whole or in part
except, in the case of any Security to be redeemed in part, the portion thereof
not so to be redeemed, or (ii) any Security for a period of 15 days next
preceding any selection of Securities for redemption.
Notwithstanding any other provision of this
Section, unless and until it is exchanged in whole or in part for the
individual Securities represented thereby, in definitive form, a Security in
global form representing all or a portion of the Securities of a series may not
be transferred except as a whole by the Depositary for such series to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
All Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company or the Trustee or any Security Registrar or Security Co-Registrar or
any Authenticating Agent) be duly endorsed by, or accompanied by a written
instrument or instruments of transfer (in form satisfactory to the Company and
the Security Registrar or any Security Co-Registrar) duly executed by, the
registered holder or by his attorney duly authorized in writing.
If at any time the Depositary for the
Securities of a series represented by one or more Securities in global form
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 2.01, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election pursuant
to Section 2.02 that such Securities be represented by one or more Securities
in global form shall no longer be effective with respect to the Securities of
such series and the Company will execute, and the Trustee, upon receipt of a
Company order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive form, in authorized denominations, in an aggregate principal amount
and like terms and tenor equal to the principal amount of the
<PAGE> 24
14
Security or Securities in global form representing such series in exchange for
such Security or Securities in global form.
The Company may at any time and in its sole
discretion determine that individual Securities of any series issued in global
form shall no longer be represented by such Security or Securities in global
form. In such event the Company will execute, and the Trustee, upon receipt of
a Company order for the authentication and delivery of definitive Securities of
such series and of the same terms and tenor, will authenticate and deliver
Securities of such series in definitive form, in authorized denominations, and
in aggregate principal amount equal to the principal amount of the Security or
Securities in global form representing such series in exchange for such
Security or Securities in global form.
If specified by the Company pursuant to
Section 2.02 with respect to a series of Securities issued in global form, the
Depositary for such series of Securities may surrender a Security in global
form for such series of Securities in exchange in whole or in part for
Securities of such series in definitive form and of like terms and tenor on
such terms as are acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Trustee upon receipt of a Company order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, without service charge to the holders:
(a) to each person specified by such
Depositary a new definitive Security or Securities of
the same series and of the same tenor, in authorized
denominations, in aggregate principal amount equal to
and in exchange for such person's beneficial interest
in the Security in global form; and
(b) to such Depositary a new Security in
global form in a denomination equal to the
difference, if any, between the principal amount of
the surrendered Security in global form and the
aggregate principal amount of the definitive
Securities delivered to holders pursuant to clause
(a) above.
Upon the exchange of a Security in global
form for Securities in definitive form, such Security in global form shall be
cancelled by the Trustee or an agent of the Company or the Trustee. Securities
issued in definitive form in exchange for a Security in global form pursuant to
this Section 2.05 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Company or the Trustee in writing. The
Trustee or such agent shall deliver such Securities to or as directed by the
persons in whose names such Securities are so registered or to the Depositary.
Whenever any securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the holder making the exchange is entitled to
receive.
<PAGE> 25
15
No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any applicable tax or other governmental charge payable
in connection therewith.
The Company and the Trustee, and the agents
of either, may deem and treat the person in whose name any Security is
registered as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for all purposes whatsoever (subject to the provisions set forth
herein relating to Record Dates and record dates for the payment of any
defaulted interest), and the Company and the Trustee, and the agents of either,
shall not be affected by any notice to the contrary.
None of the Company, the Trustee, any
Authenticating Agent, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interest and each of them may act or refrain from
acting without liability on any information relating to such records provided
by the Depositary.
SECTION 2.06.
In case any temporary or definitive Security
of a particular series shall become mutilated or be destroyed, lost or stolen,
then upon the conditions hereinafter set forth the Company in its discretion
may execute, and thereupon the Trustee or the Authenticating Agent shall
authenticate and deliver, a new Security of the same series of like tenor and
principal amount and bearing a different number, in exchange and substitution
for and upon cancellation of the mutilated Security or in lieu of and
substitution for the Security so destroyed, lost or stolen; provided, however,
that if any such mutilated, destroyed, lost or stolen Security shall have
become payable upon the maturity thereof, the Company may, instead of issuing
a substitute Security, pay such Security without requiring the surrender
thereof. The applicant for any substitute Security or for payment of any such
mutilated, destroyed, lost or stolen Security shall furnish to the Company and
to the Trustee evidence satisfactory to them, in their discretion, of the
ownership of and the destruction, loss or theft of such Security and shall
furnish to the Company and to the Trustee indemnity satisfactory to them, in
their discretion and, if required, shall reimburse the Company and the Trustee
for all expenses (including counsel fees and any tax or other governmental
charge that may be imposed in relation thereto) in connection with the
preparation, issue and authentication of such substitute Security or the payment
of such mutilated, destroyed, lost or stolen Security, and shall comply with
such other reasonable regulations as the Company and the Trustee, or either of
them, may prescribe. Any such new Security delivered pursuant to this Section
2.06 shall constitute an additional contractual obligation on the part of the
Company, whether or not the allegedly destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be equally and proportionately
entitled to the benefit of this Indenture with all other Securities of the
same series issued hereunder. All Securities shall be held and owned upon the
express condition that, to the extent permitted by law, the
<PAGE> 26
16
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities and shall preclude any and
all other rights or remedies.
SECTION 2.07.
Subject to the provisions set forth herein
relating to Record Dates and record dates for the payment of any defaulted
interest, each Security delivered pursuant to any provision of this,Indenture
in exchange or substitution for, or upon registration of transfer of,any other
Security shall carry all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.08.
Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee or the
Authenticating Agent shall authenticate and deliver temporary Securities of
such series (printed or lithographed). Temporary Securities shall be issuable
in any authorized denomination, and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
In the case of Securities of any series, such temporary Securities may be in
global form, representing all of the Outstanding Securities of such series and
tenor. Every such temporary Security of a particular series shall be
authenticated by the Trustee or the Authenticating Agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities of such series. Without unreasonable delay, and
except in the case of temporary Securities in global form which shall be
exchanged in accordance with the provisions thereof, the Company will execute
and deliver to the Trustee definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange
for definitive Securities of the same series, at the principal corporate trust
office of the Trustee or any office or agency of the Company designated
pursuant to Section 5.02 for such purpose or at the office of any Security
Co-Registrar, and the Trustee or the Authenticating Agent shall authenticate
and deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of the same series. Such exchange
shall be made by the Company at its own expense and without any charge therefor
except that the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto.
Until so exchanged, the temporary Securities of a particular series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series authenticated and delivered hereunder.
<PAGE> 27
17
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee or the Authenticating Agent
for authentication. The Trustee or the Authenticating Agent shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company, signed by its Chairman of the Board of Directors, its President or a
Vice President, without any further action by the Company. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon:
(a) a Board Resolution relating thereto
and, if applicable, an appropriate record of any
action taken pursuant to such resolution, certified
by the Secretary or an Assistant Secretary of the
Company;
(b) an executed supplemental indenture,
if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in
accordance with Section 14.03, which shall state
(1) that the form and terms of such
Securities have been established by or
pursuant to one or more Board Resolutions, by
a supplemental indenture as permitted by
Section 13.01(f), or by both such resolution
or resolutions and such supplemental
indenture, in conformity with the provisions
of this Indenture;
(2) that the supplemental
indenture, if any, when executed and
delivered by the Company and the Trustee,
will constitute a valid and legally binding
obligation of the Company;
(3) that such Securities, when
authenticated and delivered by the Trustee or
the Authenticating Agent and issued by the
Company in the manner and subject to any
conditions specified in such Opinion of
Counsel, will constitute valid and legally
binding obligations of the Company,
enforceable in accordance with their terms,
and will be entitled to the benefits of this
Indenture;
<PAGE> 28
18
(4) that the Company has the
corporate power to issue such Securities, and
has duly taken all necessary corporate action
with respect to such issuance;
(5) that the issuance of such
Securities will not contravene the charter or
by-laws of the Company or result in any
violation of any of the terms or provisions
of any law or regulation or of any indenture,
mortgage or other agreement by which the
Company is bound and under which long-term
debt of the Company as reflected in its
latest financial statements on file with the
Securities and Exchange Commission is
outstanding; and
(6) that all requirements of this
Indenture applicable to the Company in
respect of the execution and delivery by the
Company of such Securities and of such
supplemental indenture, if any, have been
complied with and that, assuming (a) all
requisite corporate authorization on the part
of the Trustee, (b) continued compliance by
the Trustee with the terms of the Indenture
specifically applicable to the Trustee, and
(c) due authentication and delivery of such
Securities by the Trustee or the
Authenticating Agent, the execution and
delivery of such supplemental indenture, if
any, will not violate the terms of this
Indenture, and that, other than compliance
with federal and state securities laws, no
authorization, approval or consent by any
regulatory or statutory or other public
authority is required in connection with the
execution and delivery of such supplemental
indenture or for the creation, issuance,
authentication and delivery of the Securities
pursuant to this Indenture.
If not all the Securities of any series are
to be issued at one time, it shall not be necessary to deliver an Opinion of
Counsel at the time of issuance of each Security, but such opinion with
appropriate modifications shall be delivered at or before the time of issuance
of the first Security of such series.
If the Company shall establish pursuant to
Section 2.02 that Securities of a series may be issued in whole or in part in
global form, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company order of authentication with
respect to such series, authenticate and deliver one or more Securities in
global form that (i) shall represent and shall be denominated in an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities of
such series and tenor to be represented by one or more Securities in global
form, (ii) shall be registered, in the name of the Depositary for such Security
or Securities in global form or the nominee of such Depositary, (iii) shall be
delivered to such Depositary or pursuant to such Depositary's instruction, and
(iv) shall bear a legend substantially to the following effect: "Unless this
certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC") to Issuer or its agent for
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is
<PAGE> 29
19
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein." Each Depositary designated
pursuant to Section 2.02 for a Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
The Trustee shall have the right to decline
to authenticate and deliver any Securities under this Section if the issue of
such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its
authentication.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01.
Redemption of Securities (other than pursuant
to a sinking fund or analogous provision) permitted by the terms of any series
of Securities shall be made in accordance with such terms and Sections 4.02 and
4.03; provided, however, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall
govern.
SECTION 4.02.
The election of the Company to redeem any
Securities of any series shall be evidenced by or pursuant to a Board
Resolution. If the Company shall elect to redeem the Securities of any series
in whole or in part as aforesaid, it shall fix a date for redemption and give
notice of its election so to redeem by mailing or causing to be mailed written
notice, postage prepaid, at least 30 days prior to the redemption date, to all
holders of Securities to be redeemed as a whole or in part, addressed to them
at their respective addresses as the same shall then appear on the Security
Register of the Company. Any notice which shall be mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the holder shall receive such notice. Failure to mail such notice, or any
defect in the notice mailed, to the holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
Each notice of redemption shall state such
election on the part of the Company, the Redemption Date and place of payment
of the Securities to be redeemed and the Redemption Price and that the
Securities designated in such notice for redemption are required to be
presented on or after such Redemption Date and at such place for payment and
<PAGE> 30
20
that interest to the Redemption Date on the Securities and portions of
Securities called for redemption will be paid as specified in said notice and
shall cease to accrue thereon on such date. If less than all the outstanding
Securities of a series are to be redeemed, the notice shall also designate the
Securities or portions of Securities that are to be redeemed. If any Security
is to be redeemed in part only, the notice shall also state that upon
presentation of such Security on or after the redemption date at said place,
such Security will be canceled and a new Security or Securities of the same
series, in an aggregate principal amount equal to the unredeemed portion of
such Security, will be issued and delivered without charge to the holder.
Notice having been so given, the Securities
and portions of Securities to be redeemed shall on the Redemption Date
specified in such notice become due and payable at the applicable Redemption
Price, together with interest accrued thereon to the Redemption Date, and from
and after the Redemption Date so specified (unless the Company shall default in
the payment of the Redemption Price of such Securities or any such accrued
interest) interest on such Securities and portions of Securities shall cease to
accrue, and upon presentation of such Securities at said place of payment and
redemption in accordance with said notice, such Securities and portions of
Securities shall be paid by the Company at the applicable Redemption Price,
together with interest accrued to the Redemption Date (except that, if the
Redemption Date shall be an Interest Payment Date, the interest payable on such
date shall be paid to the registered holders of such Securities at the close of
business on the applicable Record Date, subject to the provisions of Section
2.01).
If the Company shall at any time elect to
redeem less than all the Securities of a series then outstanding, it shall at
least 45 days prior to the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee) notify the Trustee of the principal amount of
Securities to be redeemed, and thereupon the Trustee shall select, in such
manner as the Trustee shall deem appropriate and fair, the Securities (or
portions thereof) of such series to be redeemed. No Security of a denomination
of $1,000 shall be redeemed in part and Securities may be redeemed in part only
in integral multiples of $1,000. The Trustee shall promptly notify the Company
in writing of the Securities and portions of Securities so selected.
SECTION 4.03.
If Securities of any Series at the time
outstanding are to be redeemed under circumstances to which Section
11.02 is applicable, the Company shall deliver to the Trustee (1) proof
satisfactory to the Trustee that notice of redemption thereof on a specified
redemption date has been given as hereinbefore provided, or (2) proof
satisfactory to the Trustee that arrangements have been made insuring to the
satisfaction of the Trustee that such notice will be so given, or (3) a written
instrument in form and substance satisfactory to the Trustee executed by the
Company under its corporate seal, and expressed to be irrevocable, authorizing
the Trustee to give such notice for and on behalf of the Company.
<PAGE> 31
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SECTION 4.04.
Redemption of Securities permitted or
required pursuant to a sinking fund for the retirement of Securities of a
series by the terms of such series of Securities shall be made in accordance
with such terms of such series of Securities and this Article; provided,
however, that if any such terms of a series of Securities shall conflict with
any provision of this Article, the terms of such series shall govern.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein
referred to as a "Mandatory Sinking Fund Payment", and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is
herein referred to as an "Optional Sinking Fund Payment". If provided for by
the terms of Securities of any series, the cash amount of any Mandatory Sinking
Fund Payment may be subject to reduction as provided in Section 4.05.
SECTION 4.05.
The Company may, at its option, satisfy any
Mandatory Sinking Fund Payment obligation, in whole or in part, with respect to
a particular series of Securities by (1) delivering to the Trustee outstanding
Securities of such series in transferable form theretofore purchased or
otherwise acquired by the Company or redeemed at the election of the Company
pursuant to Section 4.01 or (2) receiving credit for Securities of such series
(not previously so credited) acquired by the Company and theretofore delivered
to the Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment
obligation with an amount equal to the redemption price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such Mandatory Sinking Fund Payment shall be reduced accordingly. If the
Company shall elect so to satisfy any Mandatory Sinking Fund Payment
obligation, it shall deliver to the Trustee not less than 45 days prior to the
relevant sinking fund payment date a written notice signed on behalf of the
Company by its Chairman of the Board of Directors, its President, one of its
Vice Presidents, its Treasurer or one of its Assistant Treasurers, which shall
designate the Securities (and portions thereof, if any) to be so delivered or
credited and which shall be accompanied by such Securities (to the extent not
theretofore delivered) in transferable form. In case of the failure of the
Company, at or before the time so required, to give such notice and deliver
such Securities, the Mandatory Sinking Fund Payment obligation shall be paid
entirely in funds.
SECTION 4.06.
In addition to the sinking fund requirements
of Section 4.05, to the extent, if any, provided for by the terms of a
particular series of Securities, the Company may, at its option, make an
Optional Sinking Fund Payment with respect to such Securities. Unless
otherwise provided by such terms, (a) to the extent that the right of the
Company to make such Optional Sinking Fund Payment shall not be exercised in
any year, it shall not be cumulative or carried forward to any subsequent year,
and (b) such optional payment shall operate to reduce the amount of any
Mandatory Sinking Fund Payment obligation as to Securities of the same series.
If the Company intends to exercise its right to make such optional payment in
any year it shall deliver to the Trustee not less than 45 days prior to the
relevant sinking fund payment date a certificate signed by its Chairman of the
Board of Directors, its President, one of its Vice Presidents, its Treasurer or
one of its
<PAGE> 32
22
Assistant Treasurers stating that the Company will exercise such optional
right, and specifying the amount which the Company will pay on or before the
next succeeding sinking fund payment date. Such certificate shall also state
that no event of default has occurred and is continuing.
SECTION 4.07.
If the sinking fund payment or payments made
in funds pursuant to either Section 4.05 or 4.06 with respect to a particular
series of Securities plus any unused balance of any preceding sinking fund
payments made in funds with respect to such series shall exceed $50,000 (or a
lesser sum if the Company shall so request), it shall be applied by the Trustee
on the sinking fund payment date next following the date of such payment,
unless the date of such payment shall be a sinking fund payment date, in which
case such payment shall be applied on such sinking fund payment date, to the
redemption of Securities of such series at the redemption price specified
pursuant to Section 4.04. The Trustee shall select in the manner provided in
Section 4.02, for redemption on such sinking fund payment date, a sufficient
principal amount of Securities of such sinking fund payment date, a sufficient
principal amount of Securities of such series to absorb said funds, as nearly
as may be, and shall, at the expense and in the name of the Company, thereupon
cause notice of redemption of the Securities to be given in substantially the
manner provided in Section 4.02 for the redemption of Securities in part at the
option of the Company, except that the notice of redemption shall also state
that the Securities are being redeemed for the sinking fund. Any sinking fund
moneys not so applied by the Trustee to the redemption of Securities of such
series shall be added to the next sinking fund payment received in funds by the
Trustee and, together with such payment, shall be applied in accordance with
the provisions of this Section 4.07. Any and all sinking fund moneys held by
the Trustee on the last sinking fund payment date with respect to Securities of
such series, and not held for the payment or redemption of particular
Securities of such series, shall be applied by the Trustee to the payment of
the principal of the Securities of such series at maturity.
On or prior to each sinking fund payment
date, the Company shall pay to the Trustee a sum equal to all interest accrued
to the date fixed for redemption on Securities to be redeemed on such sinking
fund payment date pursuant to this Section 4.07.
The Trustee shall not redeem any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a default in payment of interest on any Securities of such
series or of any event of default (other than an event of default occurring as
a consequence of this paragraph) of which the Trustee has actual knowledge,
except that if the notice of redemption of any Securities of such series shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee shall redeem such Securities if funds sufficient for that purpose shall
be deposited with the Trustee in accordance with the terms of this Article
Four. Except as aforesaid, any moneys in the sinking fund at the time any such
default or event of default shall occur and any moneys thereafter paid into the
sinking fund shall, during the continuance of such default or event of default,
be held as security for the payment of all the Securities of such series;
provided, however, that in case such default or
<PAGE> 33
23
event of default shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next sinking fund payment date on
which such moneys are required to be applied pursuant to the provisions of this
Section 4.07.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 5.01.
The Company will duly and punctually pay the
principal of and premium, if any, on each of the Securities, and the interest
which shall have accrued hereon, at the date and place and in the manner
provided in the Securities and in this Indenture, and will duly comply with all
other terms, agreements and conditions contained in, or made in this Indenture
for the benefit of, the Securities.
SECTION 5.02.
The Company will maintain in the city in the
United States in which the Company has its principal business office and in The
City of New York, and may maintain elsewhere, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for transfer or exchange, where Securities of that series which are
convertible may be surrendered for conversion, if applicable, and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain such required office
or agency, or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Principal Office of the Trustee. The Company hereby initially appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all of such purposes and may from time to
time rescind such designations; provided, however, that no such designation
shall in any manner result in the creation of a Security Register or Security
Co-Registrar in addition to the Security Register required to be kept pursuant
to Section 2.05 and any Security Co-Registrar appointed pursuant to Section
2.05. The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such other office or agency.
SECTION 5.03.
If the Company shall at any time act as its
own paying agent with respect to any series of Securities, then, on or before
the date on which the principal of and premium, if any, or interest on any of
the Securities of that series by their terms or as a result of the calling
thereof for redemption shall become payable, the Company will set apart
<PAGE> 34
24
and segregate and hold in trust for the benefit of the holders of such
Securities a sum sufficient to pay such principal and premium, if any, or
interest which shall have so become payable and will notify the Trustee of its
failure to act in that regard and of any failure by the Company or any other
obligor upon the Securities of that series to make any such payment. If the
Company shall appoint, and at the time have, a paying agent for the payment of
the principal of and premium, if any, or interest on any series of Securities,
then, on or before the date on which the principal of and premium, if any, or
interest on any of the Securities of that series shall become payable as
aforesaid, whether by their terms or as a result of the calling thereof for
redemption, the Company will pay to such paying agent a sum sufficient to pay
such principal and premium, if any, or interest, to be held in trust for the
benefit of the holders of such Securities. If such paying agent shall be other
than the Trustee, the Company will cause such paying agent to execute and
deliver to the Trustee an instrument in which such paying agent shall agree
with the Trustee, subject to the provisions of this Section 5.03 and of Section
11.03, (1) that such paying agent shall hold all sums held by such paying agent
for the payment of the principal of and premium, if any, or interest on the
Securities of that series in trust for the benefit of the holders of such
Securities; (2) that such paying agent shall give to the Trustee notice of any
default by the Company or any other obligor upon the Securities of that series
in the making of any payment of the principal of and premium, if any, or
interest on the Securities of that series when the same shall have become due
and payable; and (3) that such paying agent shall, at any time during the
continuance of any such default, upon the written request of the Trustee,
deliver to the Trustee all sums so held in trust by it.
Anything in this Section 5.03 to the contrary
notwithstanding, the Company may at any time, for the purpose of obtaining a
release or satisfaction of this Indenture or for any other reason, pay or cause
to be paid to the Trustee all sums held in trust by it or by any paying agent
other than the Trustee as required by this Section 5.03, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Company or such paying agent.
Any money deposited with the Trustee or any
paying agent, or then held by the Company, in trust for the payment of the
principal of, premium, if any, or interest on any Security and remaining
unclaimed for three years after such principal, premium, if any, or interest
has become due and payable shall be paid to the Company on Company request, or
(if then held by the Company) shall be discharged from such trust; and the
holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such paying agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each business day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be
<PAGE> 35
25
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 5.04.
Subject to Section 5.05, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and that of each Subsidiary and the rights and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve the corporate existence of any
Subsidiary or any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and the other Subsidiaries taken as a whole and
that the loss thereof is not on balance materially disadvantageous to the
holders.
SECTION 5.05.
The Company will not consolidate with any
other corporation or accept a merger of any other corporation into the Company
or permit the Company to be merged into any other corporation, or sell or lease
all or substantially all its assets to another corporation, or purchase all or
substantially all the assets of another corporation, unless (i) either the
Company shall be the continuing corporation, or the successor, transferee or
lessee corporation (if other than the Company) shall be organized under the
laws of the United States or any state thereof or the District of Columbia and
shall expressly assume, by indenture supplemental hereto, executed and
delivered by such corporation prior to or simultaneously with such
consolidation, merger, sale or lease, the due and punctual payment of the
principal of and interest and premium, if any, on all the Securities, according
to their tenor, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be performed or observed by the
Company, and (ii) immediately after such consolidation, merger, sale, lease or
purchase the Company or the successor, transferee or lessee corporation (if
other than the Company) would not be in default in the performance of any
covenant or condition of this Indenture. A purchase by a Subsidiary of all or
substantially all of the assets of another corporation shall not be deemed to
be a purchase of such assets by the Company.
SECTION 5.06.
The Company will deliver to the Trustee,
within 120 days after the end of each fiscal year, a written statement signed
by the Chairman of the Board of Directors, the President, the Principal
Financial Officer or Principal Accounting Officer or the Treasurer or
Controller of the Company, stating that
(a) a review of the activities of the
Company during such year with regard to its
compliance with this Indenture has been made under
his supervision, and
(b) to the best of his knowledge, based
on such review, the Company has fulfilled all its
obligations under this Indenture throughout such
year, or, if there has been a default in the
fulfillment of any such obligation, specifying each
such default known to him and the nature and status
thereof.
<PAGE> 36
26
SECTION 5.07.
Anything in this Indenture to the contrary
notwithstanding, the Company or any Restricted Subsidiary may fail or omit in
any particular instance to comply with a covenant or condition set forth in
Section 5.04 or 5.05 with respect to any series of Securities if the Company
shall have obtained and filed with the Trustee, prior to the time of such
failure or omission, evidence (as provided in Article Seven) of the consent of
the holders of at least 66 2/3% in aggregate principal amount of the Securities
of such series at the time outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but
no such waiver shall extend to or affect any obligation not waived by the terms
of such waiver or impair any right consequent thereon.
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01.
Except where otherwise indicated by the
context or where the term is otherwise defined for a specific purpose, the term
"event of default" as used in this Indenture with respect to Securities of any
series shall mean one of the following described events (whatever the reason
for such event of default and whether or not it shall be occasioned by the
provisions of Article Fifteen) unless it is either inapplicable to a particular
series or it is specifically deleted or modified in the supplemental indenture,
if any, under which such series of Securities is issued:
(a) the failure of the Company to pay
any installment of interest on any Security of such
series, when and as the same shall become payable,
which failure shall have continued unremedied for a
period of 30 days;
(b) the failure of the Company to pay
the principal of (and premium, if any, on) any
Security of such series, when and as the same shall
become payable, whether at maturity as therein
expressed, by call for redemption (otherwise than
pursuant to a sinking fund), by declaration as
authorized by this Indenture or otherwise;
(c) the failure of the Company to pay a
sinking fund installment, if any, when and as the
same shall become payable by the terms of a Security
of such series, which failure shall have continued
unremedied for a period of 30 days;
(d) the failure of the Company, subject
to the provisions of Section 5.07, to observe and
perform any other of the covenants or agreements on
the part of the Company contained in this Indenture
(other than a covenant or agreement which has been
expressly included in this Indenture solely for the
benefit of a series of Securities other than that
series), which failure shall not have been remedied
to the satisfaction of the Trustee, or without
provision deemed by the Trustee to be adequate for
the
<PAGE> 37
27
remedying thereof having been made, for a period of
90 days after written notice shall have been given to
the Company by the Trustee or shall have been given
to the Company and the Trustee by holders of 25% or
more in aggregate principal amount of the Securities
of such series then outstanding, specifying such
failure and requiring the Company to remedy the same;
(e) an event of default, as defined in
any mortgage, indenture or instrument, including this
Indenture, under which there may be issued, or by
which there may be secured or evidenced, any
indebtedness for money borrowed of the Company,
whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result
in such indebtedness in an amount in excess of
$10,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall
not have been rescinded or annulled, or such
indebtedness shall not have been discharged, within a
period of 10 days after there has been given, by
registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the
holders of at least 10% in principal amount of the
Outstanding Securities of such series a written
notice specifying such event of default and requiring
the Company to cause such acceleration to be
rescinded or annulled or to cause such indebtedness
to be discharged;
(f) the entry by a court having
jurisdiction in the premises of a decree or order for
relief in respect of the Company in an involuntary
case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Company
or for substantially all of its property, or ordering
the winding up or liquidation of its affairs, which
decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days;
(g) the commencement by the Company of a
voluntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other
similar law now or hereafter in effect, or the
consent by the Company to the entry of an order for
relief in an involuntary case under any such law, or
the consent by the Company to the appointment of or
taking possession by a receiver, liquidator,
assignee, trustee, custodian or sequestrator (or
similar official) of the Company or for substantially
all of its property, or the making by it of an
assignment for the benefit of its creditors; or
(h) the occurrence of any other event of
default with respect to Securities of such series as
provided in an Officers' Certificate delivered
pursuant to Section 2.02 or a supplemental indenture
applicable to such series of Securities pursuant to
Section 13.01(b).
<PAGE> 38
28
The Trustee shall be deemed to have knowledge
of an event of default only upon receipt of written notice by a corporate trust
officer of the Trustee.
SECTION 6.02.
If any one or more of the above-described
events of default shall happen with respect to Securities of any series at the
time outstanding, then, and in each and every such case, during the continuance
of any such event of default, the Trustee or the holders of 25% or more in
principal amount of the Securities of such series then outstanding may, and
upon the written request of the holders of a majority in principal amount of
such Securities then outstanding, the Trustee shall declare the principal of
all the Securities of such series then outstanding, if not then due and
payable, to be due and payable, and upon any such declaration the same shall
become and be immediately due and payable, anything contained in this Indenture
or in the Securities of such series to the contrary notwithstanding. This
provision, however, is subject to the condition that if at any time after the
principal of all the Securities of such series shall have been so declared to
be due and payable, all arrears of interest, if any, upon all the Securities of
such series (with interest, to the extent that interest thereon shall be
legally enforceable, on any overdue installment of interest at the rate borne
by the Securities of such series), and the reasonable charges and expenses of
the Trustee and its agents and attorneys. All other sums payable under this
Indenture (except the principal of the Securities of such series, which would
not be due and payable were it not for such declaration) shall be paid by the
Company, and every other default and event of default under this Indenture
shall have been made good, to the reasonable satisfaction of the Trustee, or of
the holders of a majority in principal amount of the Securities of such series
then outstanding, or if provision deemed by the Trustee or by such holders to
be adequate therefor shall have been made, then and in every such case the
holders of a majority in principal amount of the Securities of such series then
outstanding may, on behalf of the holders of all the Securities of such series,
waive the event of default by reason of which the principal of the Securities
of such series shall have been so declared to be due and payable, and may
rescind and annul such declaration and its consequences; but no such waiver,
rescission or annulment shall extend to or affect any subsequent default or
event of default, or impair any right consequent thereon. Any declaration by
the Trustee pursuant to this Section 6.02 shall be by written notice to the
Company, and any declaration or waiver by the holders of Securities of any
series pursuant to this Section 6.02 shall be by written notice to the Company
and the Trustee.
The Company and the Trustee may, to the
extent provided in Section 13.01, enter into one or more indentures
supplemental hereto, with respect to any series of the Securities which may
provide for additional or different events of default with respect to such
series of Securities.
SECTION 6.03.
If the Company shall fail for a period of 30
days to pay any installment of interest on the Securities of any series or
shall fail to pay the principal of and premium, if any, on any of the
Securities of such series, when and as the same shall become due and payable,
whether at maturity, or by call for redemption (otherwise than pursuant to the
sinking fund) by declaration as authorized by this Indenture, or otherwise, or
shall fail
<PAGE> 39
29
for a period of 30 days to make any sinking fund payment as to a series of
Securities, then, upon demand by the Trustee, the Company will pay to the
Trustee for the benefit of the holders of Securities of such series then
outstanding, the whole amount which shall then have become due and payable on
all the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and reasonable compensation to the Trustee, its agents and attorneys,
and any other reasonable expenses and liabilities incurred by the Trustee under
this Indenture without negligence or bad faith.
In case the Company shall fail forthwith to
pay such amounts upon such demand, the Trustee, in its own name and as trustee
of an express trust, shall be entitled and empowered to institute any action or
proceeding, at law or in equity, for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or any other obligor upon the Securities of such series, and collect the moneys
adjudged or decreed to be payable out of the property of the Company or any
other obligor upon the Securities of such series, of the Company or any other
obligor upon the Securities of such series, wherever situated, in the manner
provided by law. Every recovery of judgment in any such action or other
proceeding (subject to the payment of the expenses, disbursements and
compensation of the Trustee, its agents and attorneys) shall be for the ratable
benefit of the holders of such series of Securities which shall be the subject
of such action or proceeding. All rights of action upon or under any of the
Securities or this Indenture may be enforced by the Trustee without the
possession of any of the Securities and without the production of any thereof
at any trial or any proceeding relative thereto.
SECTION 6.04.
The Trustee is hereby appointed, and each and
every holder of the Securities, by receiving and holding the same, shall be
conclusively deemed to have appointed the Trustee the true and lawful
attorney-in-fact of such holder, with authority (whether or not the Company
shall be in default in respect of the payment of the principal of, or interest
on, any of the Securities) to make or file, in its own name and as trustee of
an express trust, or otherwise as it shall deem advisable, in any receivership,
insolvency, liquidation, bankruptcy, reorganization or other judicial
proceeding relative to the Company or any other obligor upon the Securities, or
to their respective creditors or property, any and all claims, proofs of claim,
proofs of debt, petitions, consents, other papers and documents, and amendments
of any thereof, as may be necessary or advisable in order to have the claims of
the Trustee and of the holders of the Securities allowed in any such
proceeding, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to execute and deliver any and all other
papers and documents and to do and perform any and all other acts and things as
it may deem necessary or advisable, in order to enforce in any such proceeding
any of the claims of the Trustee and of any of such holders in respect of any
of the Securities; and any receiver, assignee, trustee, custodian or debtor in
any such proceeding is hereby authorized, and each and every holder of the
Securities, by receiving and holding the same, shall be conclusively deemed to
have authorized any such receiver,
<PAGE> 40
30
assignee, trustee, custodian or debtor to make any such payment or delivery
only to, or on the order of, the Trustee, and to pay to the Trustee any amount
due if for compensation and expenses, including counsel fees, incurred by it to
the date of such payment or delivery; provided, however, that nothing herein
contained shall be deemed to authorize or empower the Trustee to consent to or
accept or adopt, on behalf of any holder of Securities, any plan of
reorganization or readjustment of the Company affecting the Securities or the
rights of any holder thereof, or to authorize or empower the Trustee to vote in
respect of the claim of any holder of any Securities in any such proceeding.
SECTION 6.05.
Any moneys collected by the Trustee with
respect to a series of Securities under this Article Six shall be applied in
the following order, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Securities and
stamping thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
First: To the payment of all costs and
expenses in connection with the collection of such
moneys, and all amounts due to the Trustee under
Section 10.05.
Second: In case the principal of the
outstanding Securities of such series shall not have
become due and be unpaid, to the payment of interest
on the Securities of such series, in the order of the
maturity of the installments of such interest, with
interest (to the extent that such interest has been
collected by the Trustee) upon the overdue
installments of interest at the rate borne by such
Securities, such payments to be made ratably to the
persons entitled thereto.
Third: In case the principal of the
outstanding Securities of such series shall have
become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid
upon the Securities of such series for principal and
premium, if any, and interest, with interest on the
overdue principal and premium, if any, and (to the
extent that such interest has been collected by the
Trustee) interest upon overdue installments of
interest at the rate borne by the Securities of such
series, and in case such moneys shall be insufficient
to pay in full the whole amounts so due and unpaid
upon the Securities of such series, then to the
payment of such principal and premium, if any, and
interest without preference or priority of principal
and premium, if any, over interest, or of interest
over principal and premium, if any, or of any
installment of interest over any other installment of
interest, or of any Security of such series over any
other Security of such series, ratable to the
aggregate of such principal and premium, if any, and
accrued and unpaid interest.
Any surplus then remaining shall be paid to the Company or to such other
persons as shall be entitled to receive it.
SECTION 6.06.
The holders of a majority in principal amount
of the Securities of any series at the time outstanding may direct the time,
method and place of
<PAGE> 41
31
conducting any proceeding for any remedy available to the Trustee hereunder, or
of exercising any trust or power hereby conferred upon the Trustee with respect
to the Securities of such series; provided, however, that, subject to the
provisions of Section 10.02, the Trustee shall have the right to decline to
follow any such direction if the Trustee being advised by counsel determines
that the action so directed may not lawfully be taken. Prior to any
declaration accelerating the maturity of the Securities of any series, the
holders of a majority in aggregate principal amount of such series of
Securities at the time outstanding may on behalf of the holders of all of the
Securities of such series waive any past default or event of default hereunder
and its consequences except a default in the payment of interest or any premium
on or the principal of the Securities of such series. Upon any such waiver the
Company, the Trustee and the holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or event of default
or impair any right consequent thereon. Whenever any default or event of
default hereunder shall have been waived as permitted by this Section 6.06,
said default or event of default shall for all purposes of the Securities of
such series and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 6.07.
No holder of any Security of any series shall
have any right to institute any action, suit or proceeding at law or in equity
for the execution of any trust hereunder or for the appointment of a receiver
or for any other remedy hereunder, in each case with respect to an event of
default with respect to such series of Securities, unless such holder
previously shall have given to the Trustee written notice of the happening of
one or more of the events of default herein specified with respect to such
series of Securities, and unless the holders of 25% in principal amount of the
Securities of such series then outstanding shall have requested the Trustee in
writing to take action in respect of the matter complained of, and unless there
shall have been offered to the Trustee security and indemnity satisfactory to
it against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after receipt of such notification,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding; such notification, request and offer of
indemnity are hereby declared in every such case to be conditions precedent to
any such action, suit or proceeding by any holder of any Security of such
series; it being understood and intended that no one or more of the holders of
Securities of such series shall have any right in any manner whatsoever by his
or their action to enforce any right hereunder, except in the manner herein
provided, and that every action, suit or proceeding at law or in equity shall
be instituted, and maintained in the manner herein provided, for the equal
benefit of all holders of the outstanding Securities of such series; provided,
however, that nothing contained in this Indenture or in the Securities of such
series shall affect or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on
the Securities of such series to the respective holders of such Securities at
the respective due dates on such Securities stated, or affect or impair the
right, which is also absolute and unconditional, of such holders to institute
suit to enforce the payment thereof; provided, further, that in the event
property or assets are conveyed, transferred, assigned, mortgaged or pledged to
the Trustee as security for one or more series of Securities, no holder of
Securities shall be entitled to take any
<PAGE> 42
32
action or institute any suit to enforce the payment of his Securities, whether
for principal, interest or premium, if any, to the extent that the taking of
such action or the institution or prosecution of any such suit or the entry of
judgment therein would under applicable law result in a surrender, impairment,
waiver or loss of the lien of this Indenture, if any, upon the trust estate so
created by such conveyance, transfer, assignment, mortgage or pledge, or any
part thereof, as security for Securities held by any other holder.
SECTION 6.08.
All parties to this Indenture and the holders
of the Securities agree that the court may in its discretion require, in any
action, suit or proceeding for the enforcement of any right or remedy under
this Indenture, or in any action, suit or proceeding against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such action, suit or proceeding of an undertaking to pay the costs of such
action, suit or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonably attorney's fees, against any party
litigant in such action, suit or proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 6.08 shall not apply to any
action, suit or proceeding instituted by the Trustee, to any action, suit or
proceeding instituted by any one or more holders of Securities holding in the
aggregate more than 10% in principal amount of the Securities of any series
outstanding, or to any action, suit or proceeding instituted by any holder of
Securities of any series for the enforcement of the payment of the principal
of, or premium, if any, or the interest on any of the Securities of such
series, on or after the respective due dates expressed in such Securities.
SECTION 6.09.
No remedy herein conferred upon or reserved
to the Trustee or to the holders of Securities of any series is intended to be
exclusive of any other remedy or remedies, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute. No delay or
omission of the Trustee or of any holder of the Securities of any series to
exercise any right or power accruing upon any default or event of default shall
impair any such right or power or shall be construed to be a waiver of any such
default or event of default or an acquiescence therein, and every power and
remedy given by this Article Six to the Trustee and to the holders of
Securities of any series, respectively, may be exercised from time to time and
as often as may be deemed expedient by the Trustee or by the holders of
Securities of such series, as the case may be. In case the Trustee or any
holder of Securities of any series shall have proceeded to enforce any right
under this Indenture and the proceedings for the enforcement thereof shall have
been discontinued or abandoned because of waiver or for any other reason or
shall have been adjudicated adversely to the Trustee or to such holder of
Securities, then and in every such case the Company, the Trustee and the
holders of the Securities of such series shall severally and respectively be
restored to their former positions and rights hereunder and thereafter all
rights, remedies and powers of the Trustee and the holders of the Securities of
such series shall continue as though no such proceedings had been taken, except
as to any matters so waived or adjudicated.
<PAGE> 43
33
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01.
Whenever in this Indenture it is provided
that the holders of a specified percentage or a majority in aggregate principal
amount of the Securities or of any series of Securities may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the holders of such specified percentage or majority
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor, executed by Securityholders in person or by agent
or proxy appointed in writing, or (b) by the record of the holders of
Securities voting in favor thereof, at any meeting of Securityholders duly
called and held in accordance with the provisions of Article Eight, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Securityholders.
SECTION 7.02.
Proof of the execution of any instrument by a
Securityholder or his agent or proxy and proof of the holding by any person of
any of the Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any
person of any such instrument may be proved (a) by the certificate of any
notary public or other officer in any jurisdiction who, by the laws thereof,
has power to take acknowledgements or proof of deeds to be recorded within such
jurisdiction, that the person who signed such instrument did acknowledge before
such notary public or other officer the execution thereof, or (b) by the
affidavit of a witness of such execution sworn to before any such notary or
other officer. Where such execution is by a person acting in other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The ownership of Securities shall be proved
by the Security Register of such Securities or by a certificate of the Security
Registrar thereof.
The Trustee may accept such other proof or
may require such additional proof of any matter referred to in this Section
7.02 as it shall deem appropriate or necessary.
SECTION 7.03.
In determining whether the holders of the
requisite principal amount of the Securities have concurred in any direction,
request, waiver or consent under this Indenture, Securities which are owned by
the Company or by any other obligor on the Securities or by any person directly
or indirectly controlling, or controlled by, or under direct or indirect common
control with, the Company or any such other obligor shall be disregarded,
except that for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, request, waiver or consent, only
Securities which the Trustee knows are so owned shall be disregarded.
Securities so owned which have been
<PAGE> 44
34
pledged in good faith may be regarded as outstanding for the purposes of this
Section 7.03 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Securities, and that the pledgee is not a
person directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 7.04.
At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 7.01, of the taking of any
action by the holders of the percentage in aggregate principal amount of the
Securities or of any series of Securities specified in this Indenture in
connection with such action, any holder of a Security which is shown by the
evidence to be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 7.02, revoke such
action so far as concerns such Security. Except as aforesaid, any such action
taken by the holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security, irrespective of
whether or not any notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor.
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01.
A meeting of Securityholders may be called at
any time and from time to time pursuant to the provisions of this Article Eight
for any of the following purposes:
(a) to give any notice to the Company or
to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other
action authorized to be taken by Securityholders
pursuant to any of the provisions of Article Six;
(b) to remove the Trustee and nominate a
successor trustee pursuant to the provisions of
Article Ten;
(c) to consent to the execution of an
indenture or indentures supplemental hereto pursuant
to the provisions of Section 13.02; or
(d) to take any other action authorized
to be taken by or on behalf of the holders of any
specified aggregate principal amount of the
Securities of any one or more or all series, as the
case may be, under any other provision of this
Indenture or under applicable law.
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35
SECTION 8.02.
The Trustee may at any time call a meeting of
Securityholders of all series that may be affected by the action proposed to be
taken, to take any action specified in Section 8.01, to be held at such time
and at such place as the Trustee shall determine. Notice of every meeting of
the Securityholders of a series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to holders of Securities of such series at their addresses as
they shall appear on the Security Register (including the records of any
Security Co-Registrar). Such notice shall be mailed not less than 20 nor more
than 90 days prior to the date fixed for the meeting.
SECTION 8.03.
In case at any time the Company, pursuant to
a resolution of its Board of Directors, or the holders of at least 10% in
aggregate principal amount of the Securities of a series then outstanding that
may be affected by the action proposed to be taken, shall have requested the
Trustee to call a meeting of Securityholders of such series, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the place for such meeting and may
call such meeting to take any action authorized in Section 8.01, by mailing
notice thereof as provided in Section 8.02.
SECTION 8.04.
To be entitled to vote at any meeting of
Securityholders a person shall (a) be a holder of one or more Securities of a
series affected by the action proposed to be taken at the meeting or (b) be a
person appointed by an instrument in writing as proxy by a holder of one or
more such Securities. The only persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 8.05.
Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Securityholders as provided in Section
8.03, in which case the Company or the Securityholders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
majority vote of the meeting.
Subject to the provisions of Section 7.03, at
any meeting of Securityholders of a series, each Securityholder of such series
or such Securityholder's proxy shall be entitled to
<PAGE> 46
36
one vote for each $1,000 principal amount of Securities of such series
outstanding held or represented by him; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Security challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities of such series held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other Securityholders
of such series. At any meeting of the Securityholders duly called pursuant to
the provisions of Section 8.02 or 8.03, the presence of persons holding or
representing Securities in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum, and any such meeting may be
adjourned from time to time by a majority of those present, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 8.06.
The vote upon any resolution submitted to any
meeting of Securityholders of a series shall be by written ballots on which
shall be subscribed the signatures of the holders of Securities of such series
or of their representatives by proxy and the principal amounts of the
Securities of such series held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat, and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 8.02. The record shall show the principal amounts of the Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 8.07.
Nothing contained in this Article Eight shall
be deemed or construed to authorize or permit, by reason of any call of a
meeting of Securityholders of any series or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise
of any right or rights conferred upon or reserved to the Trustee or to the
Securityholders of such series under any of the provisions of this Indenture or
of the Securities of such series.
<PAGE> 47
37
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
SECTION 9.01.
In accordance with Section 312(a) of the
Trust Indenture Act, the Company shall furnish or cause to be furnished to the
Trustee:
(a) semiannually with respect to
Securities of each series on January 15 and July 15
of each year or upon such other dates as are set
forth in or pursuant to the Board Resolution or
indenture supplemental hereto authorizing such
series, a list, in each case in such form as the
Trustee may reasonably require, of the names and
addresses of holders as of the applicable date; and
(b) at such other times as the Trustee
may request in writing, within 30 days after the
receipt by the Company of any such request, a list of
similar form and content as of a date not more than
15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
SECTION 9.02.
The Trustee shall comply with the obligations
imposed upon it pursuant to Section 312 of the Trust Indenture Act.
Every holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company, the Trustee, any Paying Agent or any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Securities in accordance with Section 312 of
the Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
SECTION 9.03.
(a) Within 60 days after May 15 of each
year commencing with the first May 15 following the first issuance of
Securities, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act,
a brief report dated as of such May 15 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the
reports required by Section 313(b) of the Trust Indenture Act and Section 10.11
hereof at the times specified therein.
(c) Reports pursuant to this Section
shall be transmitted in the manner and to the persons required by Sections
313(c) and 313(d) of the Trust Indenture Act.
<PAGE> 48
38
SECTION 9.04.
The Company, pursuant to Section 314(a) of
the Trust Indenture Act, shall:
(a) file with the Trustee, within 15
days after the Company is required to file the same
with the Commission, copies of the annual reports and
of the information, documents and other reports (or
copies of such portions of any of the foregoing as
the Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports
pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such of the
supplementary and periodic information, documents and
reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of
a security listed and registered on a national
securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the
Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such
additional information, documents and reports with
respect to compliance by the Company with the
conditions and covenants of this Indenture as may be
required from time to time by such rules and
regulations; and
(c) transmit to the holders within 30
days after the filing thereof with the Trustee, in
the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and
regulations prescribed from time to time by the
Commission.
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01.
Subject to Sections 315(a) through 315(d) of
the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper
or document reasonably believed by it to be genuine
and to have been signed or presented by the proper
party or parties;
<PAGE> 49
39
(b) any request or direction of the
Company mentioned herein shall be sufficiently
evidenced by an Officers' Certificate and any
resolution of the Board of Directors or any committee
thereof (or committee of officers or other
representatives of the Company, to the extent any
such committee or committees have been so authorized
by the Board of Directors) may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of
this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to
taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence shall be herein
specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel
and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by or pursuant to this Indenture at the
request or direction of any of the holders of
Securities of any series pursuant to this Indenture,
unless such holders shall have offered to the Trustee
reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to
make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, coupon or
other paper or document, but the Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be
entitled to examine, during business hours and upon
reasonable notice, the books, records and premises of
the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it
hereunder.
SECTION 10.02.
The recitals contained herein and in the
Securities, except those referring or relating to the Trustee or any of its
agents, and except for the Trustee's certificate of authentication, shall be
taken as the statements of the Company and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the
<PAGE> 50
40
Securities, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder, and that the statements made by it in a Statement of
Eligibility and Qualification on Forms T-1 supplied to the Company are and will
be true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
SECTION 10.03.
The Trustee, any Authenticating Agent, any
Security Registrar or any other person that may be an agent of the Trustee or
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Security Registrar
or such other person.
SECTION 10.04.
Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law
and, subject to Section 11.02 hereof, may be invested in direct obligations of
the United States of America in such amounts and with such maturities that will
ensure that the principal of such obligations, together with the income thereon
(without consideration of any reinvestment thereof) will be sufficient to pay
all sums due for principal of, premium, if any, and interest on the Securities,
as they become due from time to time. The Trustee shall be under no liability
for interest on any money received by it or for losses on any investments made
by it pursuant to this Section 10.04 except as otherwise agreed with the
Company.
SECTION 10.05.
The Company agrees:
(1) to pay to the Trustee from time to
time reasonable compensation for all services
rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in
regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its
request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and counsel)
except any such expense, disbursement or advance as
may be attributable to the Trustee's negligence or
bad faith; and
(3) to indemnify the Trustee and its
agents for, and to hold them harmless against, any
loss, liability or expense incurred without
negligence or bad faith on their part (excluding, for
so long as no event of default hereunder has occurred
and is continuing, any settlement that has not been
approved by the Company in writing prior to any such
settlement) arising out of or in connection with the
acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of
defending themselves against any claim or liability
in connection with the exercise or
<PAGE> 51
41
performance of any of their powers or duties
hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's
negligence or bad faith.
The obligations of the Company under this
Section to compensate and indemnify the Trustee and each predecessor Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture.
SECTION 10.06.
There shall at all times be a Trustee
hereunder that is a corporation permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act and that has
a combined capital and surplus (computed in accordance with Section 310(a)(2)
of the Trust Indenture Act) of at least $25,000,000. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 10.07.
(a) No resignation or removal of the
Trustee and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee pursuant to Section 10.08.
(b) The Trustee may resign at any time
with respect to the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 10.08 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
(c) The Trustee may be removed at any
time with respect to the Securities of any series by Act of the holders of a
majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply
with the obligations imposed upon it under Section
310(b) of the Trust Indenture Act with respect to
Securities of any series after written request
therefor by the Company or any holder of a Security
of such series who has been a bona fide holder of a
Security of such series for at least six months; or
(2) the Trustee shall cease to be
eligible under Section 10.06 and shall fail to resign
after written request therefor by the Company or any
such holder; or
(3) the Trustee shall become incapable
of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its
property shall be appointed
<PAGE> 52
42
or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any
holder of a Security who has been a bona fide holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities of one or more
series which shall occur only with the express prior written consent of the
Company, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 10.08. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 10.08, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the holders of Securities and accepted
appointment in the manner required by Section 10.08, any holder of a Security
who has been a bona fide holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of
each resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall include
the name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 10.08.
(a) Upon the appointment hereunder of any
successor Trustee with respect to all Securities, such successor Trustee so
appointed shall execute,
<PAGE> 53
43
acknowledge and deliver to the Company and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges, shall execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and, subject to Section 5.03, shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
10.05.
(b) Upon the appointment hereunder of
any successor Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and such successor Trustee shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, such successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee and that no Trustee shall be responsible for any notice given to,
or received by, or any act or failure to act on the part of any other Trustee
hereunder, and, upon the execution and delivery of such supplemental indenture,
the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein, such retiring Trustee shall have no further
responsibility for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates other than as hereinafter expressly set forth,
and such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or such successor Trustee, such retiring Trustee, upon payment of its charges
with respect to the Securities of that or those series to which the appointment
of such successor relates and subject to Section 5.03 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
<PAGE> 54
44
(c) Upon request of any person appointed
hereunder as a successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No person shall accept its
appointment hereunder as a successor Trustee unless at the time of such
acceptance such successor person shall be qualified and eligible under this
Article.
SECTION 10.09.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall
have been authenticated but not delivered by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 10.10.
The Trustee may appoint one or more
Authenticating Agents acceptable to the Company with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of that or those series issued upon original issue,
exchange, registration of transfer, partial redemption or pursuant to Section
2.06, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable
to the Company and, except as provided in or pursuant to this Indenture, shall
at all times be a corporation that would be permitted by the Trust Indenture
Act to act as trustee under an indenture qualified under the Trust Indenture
Act, is authorized under applicable law and by its charter to act as an
Authenticating Agent and has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$5,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be consolidated, or any
Corporation resulting from any
<PAGE> 55
45
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, provided such Corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any
time by giving written notice thereof to the Trustee and the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and the Company.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall (i) mail written notice of such appointment by first-class mail, postage
prepaid, to all holders of Securities of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The provisions of Sections 2.05, 10.02 and
10.03 shall be applicable to each Authenticating Agent.
If all of the Securities of any series may
not be originally issued at one time, and if the Trustee does not have an
office capable of authenticating Securities upon original issuance located in a
place of payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in writing
(which writing need not be accompanied by or contained in an Officers'
Certificate by the Company), shall appoint in accordance with this Section an
Authenticating Agent having an office in a place of payment designated by the
Company with respect to such series of Securities.
SECTION 10.11.
The Trustee shall, within ninety days after
the occurrence of a default with respect to the Securities of any series, mail
to all holders of Securities of that series entitled to receive reports
pursuant to Section 9.03, notice of all defaults with respect to that series
known to the Trustee, unless such defaults shall have been cured before the
giving of such notice; provided, however, that, except in the case of default
in the payment of the principal of, premium, if any, or interest on any of the
Securities of such series or in the making of any sinking fund payment with
respect to such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors or trustees, the executive
committee, or a trust committee of directors or trustees or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the holders of Securities of such series. For
the purpose of this Section, the term
<PAGE> 56
46
"default" means any event which is, or after notice or lapse of time, or both,
would become, an event of default hereunder.
ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01.
If and when the principal of, and the
premium, if any, and the interest on, all the Securities outstanding hereunder
and all other sums due hereunder shall have been well and truly paid at the
times and in the manner therein and herein expressed, this Indenture shall
cease and determine, and, at the written request of the Company, accompanied by
the Officers' Certificate and Opinion of Counsel required by Section 14.03, and
upon proof being given to the reasonable satisfaction of the Trustee that all
the Securities have been paid or satisfied and upon payment of the costs,
charges and expenses incurred or to be incurred by the Trustee in relation
thereto or in carrying out the provisions of this Indenture, the Trustee shall
cancel this Indenture and execute and deliver to the company such instruments
as shall be requisite to evidence the satisfaction hereof.
SECTION 11.02.
If, at any time after the date hereof, the
Company shall deposit with the Trustee, in trust for the benefit of the holders
thereof, (i) funds sufficient to pay, or (ii) such amount of direct obligations
of the United States of America as will or will together with the income
thereon without consideration of any reinvestment thereof be sufficient to pay,
all sums due for principal of, premium, if any, and interest on the Securities
of a particular series, as they shall become due from time to time, and shall
pay all costs, charges and expenses incurred or to be incurred by the Trustee
in relation thereto or in carrying out the provisions of this Indenture in
relation thereto, this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of registration
of transfer, substitution and exchange of Securities of such series, (ii)
rights of holders to receive payments of principal of, premium, if any, and
interest on the Securities of such series as they shall become due from time to
time and other rights, duties and obligations of Securityholders as
beneficiaries hereof with respect to the amounts so deposited with the Trustee,
and (iii) the rights, obligations and immunities of the Trustee hereunder (for
which purposes the Securities of such series shall be deemed outstanding)), and
the Trustee, on the written request of the Company, accompanied by the
Officers' Certificate and Opinion of Counsel required by Section 14.03, and an
Opinion of Counsel to the effect that holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as a
result of the Company's action under this Section 11.02 and will be subject to
Federal income tax in the same amount, in the same manner and at the same times
as would have been the case if such action had not been taken, shall execute
and deliver to the Company such instruments as shall be requisite to evidence
the satisfaction thereof with respect to Securities of such series. The
Trustee shall apply the moneys so deposited solely to the payment to the
holders of the Securities of such series of all sums due thereon for principal,
premium, if any, and interest, and the Trustee shall have no claim for
<PAGE> 57
47
itself, for fees, expenses or otherwise, to such moneys so deposited. Money
and securities held in trust pursuant to this Section 11.02 shall not be
subject to Article Fifteen.
SECTION 11.03.
Neither the Trustee nor any other paying
agent shall be required to pay interest on any moneys deposited pursuant to the
provisions of this Indenture, except such as it shall agree with the Company to
pay thereon. Any moneys so deposited for the payment of the principal of,
premium, if any, or interest on the Securities of any series and remaining
unclaimed for three years after the date of the maturity of the Securities of
such series or the date fixed for the redemption of all the Securities of such
series at the time outstanding, as the case may be, shall be repaid by the
Trustee or such other paying agent to the Company upon its written request and
thereafter, anything in this Indenture to the contrary notwithstanding, any
rights of the holders of Securities of such series in respect of which such
moneys shall have been deposited shall be enforceable only against the Company,
and all liability of the Trustee or such other paying agent with respect to
such moneys shall thereafter cease.
Subject to the provisions of the foregoing
paragraph, any moneys which at any time shall be deposited by the Company or on
its behalf with the Trustee or any other paying agent for the purpose of paying
the principal of, premium, if any, and interest on any of the Securities shall
be and are hereby assigned, transferred and set over to the Trustee or such
other paying agent in trust for the respective holders of the Securities for
the purpose for which such moneys shall have been deposited; but such moneys
need not be segregated from other funds except to the extent required by law.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01.
No recourse shall be had for the paying of
the principal of, or the premium, if any, or interest on, any Security or for
any claim based thereon or otherwise in respect thereof or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, stockholder, officer, director or
employee, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and the Securities
are solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, stockholder, officer,
director or employee, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, because of the incurring of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in this
<PAGE> 58
48
Indenture or in any of the Securities or to be implied herefrom or therefrom,
and that all liability, if any, of that character against every such
incorporator, stockholder, officer, director and employee is, by the acceptance
of the Securities and as a condition of, and as part of the consideration for,
the execution of this Indenture and the issue of the Securities expressly
waived and released.
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01.
The Company (when authorized by resolution of
its Board of Directors) and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any one or more of the following purposes:
(a) to add to the covenants and
agreements of the Company, to be observed thereafter
and during the period, if any, in such supplemental
indenture or indentures expressed, to surrender any
right or power hereunder conferred upon the Company,
and to add events of default, in each case for the
protection or benefit of the holders of all or any
series of the Securities (and if such covenants,
agreements, surrender of rights or powers and events
of default are to be for the benefit of fewer than
all series of Securities, stating that such
covenants, agreements, surrender of rights or powers
and events of default are expressly being included
for the benefit of such series as shall be identified
therein);
(b) to change or eliminate any
provisions of the Indenture with respect to all or
any series of the Securities not then outstanding
(and, if such change is applicable to fewer than all
such series of the Securities, specifying the series
to which such change is applicable), and to specify
the rights and remedies of the Trustee and the
holders of such Securities in connection therewith;
(c) to evidence the succession of
another corporation to the Company, the Trustee, or
successive successions, and the assumption by a
successor, transferee or lessee corporation of the
covenants and obligations of the Company or Trustee,
as the case may be, contained in the Securities of
one or more series or in this Indenture;
(d) to cure any ambiguity or to correct
or supplement any provision contained herein or in
any indenture supplemental hereto which may be
defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or
to make any other provision in regard to matters or
questions arising under this Indenture which the
Board of Directors of the Company may deem necessary
or desirable and which shall not adversely affect the
interests of the holders of the Securities;
<PAGE> 59
49
(e) to prohibit the authentication and
delivery of additional series of Securities;
(f) to add to or change any of the
provisions of this Indenture to such extent as shall
be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not
registrable as to principal and with or without
interest coupons;
(g) to establish the form and terms of
the Securities of any series as permitted in Sections
2.01 and 2.02, or to authorize the issuance of
additional Securities of a series previously
authorized or to add to the conditions, limitations
or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the
Securities of any series, as herein set forth, or
other conditions, limitations or restrictions
thereafter to be observed; and
(h) to modify, alter, amend or
supplement this Indenture in any other respect which
is not materially adverse to the holders, so long as
such change does not require the consent of the
holders pursuant to any other provision of this
Indenture and is not inconsistent with any other
provisions of this Indenture and which, in the
judgment of the Trustee, is not to the prejudice of
the Trustee and maintains adequate protection to the
Trustee when the same becomes operative.
Subject to the provisions of Section 13.03,
the Trustee is authorized to join with the Company in the execution of any such
supplemental indenture, to make the further agreements and stipulations which
may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property or assets thereunder.
Any supplemental indenture authorized by the
provisions of this Section 13.01 may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of Section 13.02.
SECTION 13.02.
With the consent (evidenced as provided in
Article Seven) of the holders of not less than 66 2/3% in aggregate principal
amount of the Securities at the time outstanding which are affected by such
indenture supplemental hereto, the Company, when authorized by a resolution of
its Board of Directors, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
holders of the Securities of any series to be affected; provided, however, that
no such supplemental indenture shall (i) extend the fixed maturity of any
Securities, or reduce the rate or extend the time of payment of interest
thereon, or reduce the amount of the principal thereof, or reduce any premium
payable upon the redemption thereof, or make the principal thereof or interest
or premium thereon payable in any coin or currency other than that provided in
the
<PAGE> 60
50
Securities, or impair the right to institute suit for the enforcement of any
such payment on or after the maturity thereof as provided in Section 6.07, or
adversely affect the right to convert any Security as may be provided pursuant
to Section 2.02 herein, without the consent of the holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities of any series,
the holders of which are required to consent to any such supplemental
indenture, or modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the holder thereof,
without the consent of the holders of all the Securities then outstanding, or
(iii) modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.
A supplemental indenture which changes or
eliminates any provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the holders of Securities of such series with respect to
such provision, shall be deemed not to affect the rights under this Indenture
of the holders of Securities of any other series.
It shall not be necessary for the consent of
the Securityholders under this Section 13.02 to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of
this Section 13.02, the Company shall mail a notice, setting forth in general
terms the substance of such supplemental indenture, to the holders of
Securities affected by such supplemental indenture at their addresses as the
same shall then appear in the register of the Company. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 13.03.
Upon the request of the Company, accompanied
by the Officers' Certificate and Opinion of Counsel required by Section 14.03
and by
(a) a supplemental indenture duly
executed on behalf of the Company,
(b) a copy of a resolution of the Board
of Directors of the Company, certified by the
Secretary or an Assistant Secretary of the Company,
authorizing the execution of said supplemental
indenture,
(c) an Opinion of Counsel, stating that
said supplemental indenture complies with, and that
the execution thereof is authorized or permitted by,
the provisions of this Indenture, and
(d) if said supplemental indenture shall
be executed pursuant to Section 13.02, evidence (as
provided in Article Seven) of the consent thereto of
the Securityholders required to consent thereto as in
Section 13.02 provided,
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51
the Trustee shall join with the Company in the execution of said supplemental
indenture unless said supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to, enter into said
supplemental indenture.
SECTION 13.04.
Upon the execution of any supplemental
indenture pursuant to the provisions of this Article Thirteen, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
and, except as herein otherwise expressly provided, the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of all of the Securities or of the
Securities of any series affected, as the case may be, shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and shall be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 13.05.
Securities authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of this
Article Thirteen may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Securities then Outstanding in equal aggregate principal
amounts, and such exchange shall be made without cost to the holders of the
Securities.
SECTION 13.06.
Every supplemental indenture executed
pursuant to the provisions of this Article Thirteen shall conform to the
requirements of the Trust Indenture Act of 1939 as then in effect.
SECTION 13.07.
No supplemental indenture shall adversely
affect the rights of any holder of Senior Indebtedness under Article Fifteen
without the consent of such holder.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01.
Subject to the provisions of Section 5.05,
nothing contained in this Indenture or in the Securities shall be deemed to
prevent the consolidation or merger of the Company with or into any other
corporation, or the merger into the Company of any other corporation, or the
sale or lease by the Company of its property and assets as, or substantially
as, an entirety, or otherwise.
<PAGE> 62
52
Upon any consolidation or merger, or any sale
other than for cash or lease of all or substantially all of the assets of the
Company in accordance with the provisions of Section 5.05, the corporation
formed by such consolidation or into which the Company shall have been merged
or to which such sale or lease shall have been made shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as a party hereto, and thereafter from time to time such corporation may
exercise each and every right and power of the Company under this Indenture, in
the name of the Company or in its own name; and any act or proceeding by any
provision of this Indenture required or permitted to be done by the Board of
Directors or any officer of the Company may be done with like force and effect
by the like board or officer of any corporation that shall at the time be the
successor of the Company hereunder. In the event of any such sale or
conveyance, but not any such lease, the Company (or any successor corporation
which shall theretofore have become such in the manner described in Section
5.05) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may thereupon be dissolved and liquidated.
Anything in this Section 14.01 to the
contrary notwithstanding, no such consolidation or merger shall be entered
into, and no such conveyance or transfer shall be made, by the Company with or
to another corporation or person which has outstanding any obligations secured
by a Lien if, as a result thereof, any of the properties of any character owned
by the Company immediately prior thereto would be subject to such Lien, unless
simultaneously therewith or prior thereto effective provision shall be made to
secure all of the Securities equally and ratably with (or prior to) such other
secured obligations.
SECTION 14.02.
Nothing in this Indenture expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or to give to, any person or corporation
other than the parties hereto and their successors and the holders of the
Securities any right, remedy or claim under or by reason of this Indenture or
any covenant, condition, stipulation, promise or agreement hereof, and all
covenants, conditions, stipulations, promises and agreements in this Indenture
contained shall be for the sole and exclusive benefit of the parties hereto and
their successors and of the holders of the Securities.
SECTION 14.03.
As evidence of compliance with the conditions
precedent provided for in this Indenture (including any covenants compliance
with which constitutes a condition precedent) which relate to the
authentication and delivery of the Securities, to the satisfaction and
discharge of this Indenture or to any other action to be taken by the Trustee
at the request or upon the application of the Company, the Company will furnish
to the Trustee an Officers' Certificate, stating that such conditions precedent
have been complied with and an Opinion of Counsel stating that in the opinion
of such Counsel such conditions precedent have been complied with. Such
Opinion of Counsel may be in the form and contain such assumptions,
qualifications and limitations as customarily appear in legal opinions issued
in the jurisdiction in which any such opinion of counsel is rendered.
<PAGE> 63
53
Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall
include (1) a statement that the person making such certificate or opinion has
read such condition or covenant; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in
the opinion of such person, such examination or investigation as is necessary
to enable the expression of an informed opinion as to whether or not such
condition or covenant has been complied with has been made; and (4) a statement
as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
Notwithstanding any provision of this
Indenture authorizing the Trustee conclusively to rely upon any certificates or
opinions, the Trustee, before granting any application by the Company or taking
or refraining from taking any other action in reliance thereon, may require any
further evidence or make any further investigation as to the facts or matters
stated therein which it may, in good faith, deem reasonable in the
circumstances, and in connection therewith the Trustee may examine or cause to
be examined the pertinent books, records and premises of the Company or of any
Subsidiary; and the Trustee shall, in any such case, require such further
evidence or make such further investigation as may be requested by the holders
of a majority in principal amount of the Securities then outstanding, provided
that, if payment to the Trustee of the costs, expenses and liabilities likely
to be incurred by it in making such investigation is not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee before making such investigation may require reasonable indemnity
against such costs, expenses and liabilities. Any further evidence which may
be requested by the Trustee pursuant to any of the provisions of this paragraph
shall be furnished by the Company at its own expense; and any cost, expenses
and liabilities incurred by the Trustee pursuant to any of the provisions of
this paragraph shall be paid by the Company, or, if paid by the Trustee, shall
be repaid by the Company, upon demand, with interest at the highest rate borne
by the Securities, and, until such repayment, shall be secured by a lien on any
moneys held by the Trustee hereunder prior to any rights therein of the holders
of Securities.
SECTION 14.04.
All Securities paid, redeemed, exchanged,
surrendered for registration of transfer or retired pursuant to the sinking
fund or otherwise shall, if surrendered to the Company or to any paying agent,
be delivered to the Trustee for cancellation and shall be cancelled by it or,
if surrendered to the Trustee, shall be cancelled by it, and, except as
otherwise provided in Sections 2.04, 2.05, 2.07, 4.02, 4.07 and 13.05, no
Securities shall be issued under the Indenture in lieu thereof. The Trustee
shall make appropriate notations in its records in respect of all such
Securities and shall destroy such Securities and deliver a certificate of such
destruction to the Company. If the Company shall acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation.
<PAGE> 64
54
SECTION 14.05.
If any provision of this Indenture limits,
qualifies or conflicts with any duties under any required provision of the
Trust Indenture Act imposed hereon by Section 318(c) thereof, such required
provision shall control.
SECTION 14.06.
Whenever action is required by this Indenture
by the Board of Directors of the Company and there is at the time constituted a
committee of the Board of Directors duly authorized to take such action, such
action by said committee shall be deemed to be the action of the Board of
Directors and shall be sufficient for all purposes of this Indenture where
action by the Board of Directors is specified.
SECTION 14.07.
Any notice or demand authorized by this
Indenture to be given to the Company shall be sufficiently given for all
purposes, if it shall be given or made in writing, by hand, telecopier (with
confirmation of receipt) or certified or registered mail (confirmation of
receipt requested) to the Company addressed to it at Dial Tower, Phoenix,
Arizona 85077 (telephone: (602) 207-4900; telecopier: (602) 207-5543) to the
attention of its General Counsel or at such other address as may have been
furnished in writing to the Trustee by the Company. Any notice, direction,
request or demand to or upon the Trustee shall be sufficiently given, for all
purposes, if it shall be given or made in writing, by hand, telecopier (with
confirmation of receipt) or certified or registered mail (confirmation of
receipt requested) to Continental Bank, National Association (telephone: (312)
828- 7321; telecopier: (312) 828-6528) to the attention of its Corporate
Trust Office, or at such other address as may have been furnished in writing to
the Company by the Trustee. Any notice required or permitted to be given to
Securityholders shall be sufficiently given if given by first class mail,
postage prepaid, to such holders, at their addresses as the same shall appear
on the Security Register. A failure to give notice with respect to any
particular holder or any defect therein shall not affect the sufficiency of
notice given to any other holder. Notice may be waived in writing by the
person entitled to receive such notice either before or after such event and
such waiver shall be the equivalent of receipt of such notice.
SECTION 14.08.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by or pursuant to
this Indenture to be given or taken by holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
holders in person or by an agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section 14.08.
<PAGE> 65
55
Without limiting the generality of this
Section 14.08, unless otherwise provided in or pursuant to this Indenture, a
holder, including a Depositary that is a holder of a global Security, may make,
give or take, by a proxy, or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be made, given or taken by
holders, and a Depositary that is a holder of a global Security may provide for
the beneficial owners of interests in any such global Security to direct such
Depositary in taking such action through such Depositary's standing
instructions and customary practices. The Depositary shall report only one
result of its solicitation of proxies to the Trustee.
(b) The fact and date of the execution
by any person of any such instrument or writing may be proved in any reasonable
manner which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee may in any
instance require further proof with respect to any of the matters referred to
in this Section.
(c) The ownership, principal amount and
serial numbers of Securities held by any person, and the date of the
commencement and the date of the termination of holding the same, shall be
proved by the Security Register.
(d) If the Company shall solicit from
the holders of any Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company shall, by Board Resolution,
fix in advance a record date for the determination of holders of Securities
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act. Such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the holders of Securities of record at the close of business on
such record date shall be deemed to be holders for the purpose of determining
whether holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that
no such authorization, agreement or consent by the holders of Securities shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
(e) Any request, demand, authorization,
direction, notice, consent, waiver or other action by the holder of any
Security shall bind every future holder of the same Security and the holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered to be done
by the Trustee, any Security Registrar or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 14.09.
In any case where the date of maturity of
interest on or principal of the Securities or the date fixed for redemption of
any Securities shall not be a business day, then payment of interest, principal
and premium, if any, may be made on the
<PAGE> 66
56
next succeeding business day with the same force and effect as if made on the
date of maturity and no interest shall accrue for the period after such date.
SECTION 14.10.
This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
SECTION 14.11.
This Indenture and each Security shall be
deemed to be a contract made under the law of the State of New York, and for
all purposes shall be construed in accordance with the law of said State.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 15.01.
The Company, for itself, its successors and
assigns, covenants and agrees, and each holder of Securities by his acceptance
thereof, likewise covenants and agrees, Indebtedness evidenced by such
Securities, including the principal of and premium, if any, on, sinking fund
requirements therefor, if any, and interest, if any, on each and all of the
Securities are hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness. The subordination provisions hereof shall be subject to
the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
holders thereof by a lawful plan of reorganization under applicable bankruptcy
law.
SECTION 15.02.
In the event of any distribution of assets or
securities of the Company of any kind or character (whether in cash, property
or securities) upon any dissolution, winding-up, liquidation or reorganization
of the Company, whether voluntary or involuntary and whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets and
liabilities of the Company or otherwise,
(a) the holders of all Senior
Indebtedness shall be entitled to receive payment in
full of the principal thereof and premium, if any,
thereon and interest due thereon before any payment
or distribution of any character (whether in cash,
securities or property) is made on account of the
principal of (and premium, if any), or interest on or
sinking fund requirements, if any, for the
indebtedness evidenced by the Securities of any
series; and
(b) any payment or distribution of
assets or securities of the Company of any kind or
character, whether in cash, property or securities,
on account of the indebtedness evidenced by the
Securities of any series to which the holders of such
<PAGE> 67
57
Securities or the Trustee would be entitled except
for the provisions of this Article Fifteen shall be
paid or delivered by the Company or any trustee in
bankruptcy, receiver, assignee for benefit of
creditors, or other liquidating agent making such
payment or distribution, directly to the holders of
Senior Indebtedness at the time outstanding or their
representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior
Indebtedness may have been issued, pro rata, as their
respective interests may appear, for application to
the payment of all such Senior Indebtedness remaining
unpaid, to the extent necessary to pay all such
Senior Indebtedness in full after giving effect to
any concurrent payment or distribution to the holders
of such Senior Indebtedness; and
(c) in the event that, notwithstanding
the foregoing, any payment or distribution of assets
or securities of the Company of any kind or
character, whether in cash, property or securities,
on account of the indebtedness evidenced by the
Securities of any series shall be received by the
Trustee or the holders of such Securities before all
Senior Indebtedness is paid in full, such payment or
distribution shall be received and held for the
benefit of, and shall be paid over or delivered to
the holders of such Senior Indebtedness or their
representative or representatives or to the trustee
or trustees under any indenture under which any
instrument evidencing any of such Senior Indebtedness
may have been issued, pro rata, as their respective
interests may appear, for application to the payment
of all such Senior Indebtedness, to the extent
necessary to pay all such Senior Indebtedness in full
after giving effect to any concurrent payment or
distribution to the holders of such Senior
Indebtedness.
The Company shall give prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of the Company within the meaning of
this Section 15.02. Upon any payment or distribution of assets or securities
of the Company referred to in this Section 15.02, the Trustee, subject to the
provisions of Section 10.01, shall be entitled to rely upon a certificate of
the trustee in bankruptcy, receiver, assignee for benefit of creditors or other
liquidating agent making such payment or distribution, delivered to the Trustee
or to the holders of Securities of any series, for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Section 15.02. In the event that the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Section 15.02, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such person, as to the extent to which such person is entitled to participate
in such payment or distribution, and as to other facts pertinent to the rights
of such person under this Section 15.02, and if such evidence is not furnished,
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such
<PAGE> 68
58
payment. Nothing in this Section 15.02 shall apply to the claims of, or
payments to, the Trustee under or pursuant to Section 10.05.
Subject to the payment in full of all Senior
Indebtedness, the holders of the Securities of any series shall be subrogated
to the rights of the holders of Senior Indebtedness to receive payments or
distributions of assets or securities of the Company made on the Senior
Indebtedness until the principal of and premium, if any, and interest on the
Securities shall be paid in full and for purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of cash,
property, or securities, to which the holders of the Securities or the Trustee
would be entitled except for the provisions of this Article Fifteen, and no
payment over pursuant to the provisions of this Article Fifteen to the holders
of Senior Indebtedness by the holders of the Securities or the Trustee, shall,
as between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of Securities, be deemed to be a payment by the
Company to or on account of Senior Indebtedness, it being understood that the
provisions of this Article Fifteen are, and are intended, solely for the
purpose of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 15.03.
Nothing contained in this Article Fifteen or
elsewhere in this Indenture, or in any of the Securities of any series, is
intended to or shall impair, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Securities the principal of (and premium, if any) and interest
on the Securities, as and when the same shall become due and payable in
accordance with their terms, or affect the relative rights of the holders of
the Securities and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the provisions of
Article Six and the rights, if any, under this Article Fifteen of the holders
of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
SECTION 15.04.
(a) Upon the maturity of any Senior
Indebtedness by lapse of time, acceleration or otherwise, or upon the maturity
of the Securities of such series by acceleration thereof under Article 6, then
all principal and interest on all such matured Senior Indebtedness, or on all
Senior Indebtedness outstanding at the time of such acceleration under Article
6, respectively, shall first be paid in full before any direct or indirect
payment (in cash, property, securities, by set-off or otherwise) on account of
principal (and premium, if any) or interest is made upon the Securities.
(b) Upon a default in the payment of
principal (and premium, if any) or interest with respect to any Senior
Indebtedness, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on
<PAGE> 69
59
account of the principal of (and premium, if any) or interest on the Securities
or as a sinking fund, if any, for the Securities (except sinking fund payments,
if any, made in Securities acquired by the Company prior to such default), or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities. In the event that, notwithstanding the foregoing, any
direct or indirect payment or distribution shall be received by the Trustee or
by any holder of the Securities in contravention of the provisions of Section
15.02 or this paragraph (b), then such payments shall be held for the benefit
of, and shall be paid over to, the holders of all Senior Indebtedness at the
time outstanding or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, as their respective interests
may appear, for application to the pro rata payment of all such Senior
Indebtedness until all such Senior Indebtedness shall have been paid in full,
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
(c) Upon the happening of an event of
default (other than a default in the payment of principal, premium, if any, or
interest) with respect to any Senior Indebtedness, as defined therein or in the
instrument under which the same is outstanding, permitting the holders thereof
to accelerate the maturity thereof, then, unless and until such event of
default (other than a default in the payment of principal, premium, if any, or
interest) shall have been cured or waived or shall have ceased to exist, no
direct or indirect payment (in cash, property, securities, by set-off or
otherwise) shall be made or agreed to be made on account of the principal of
(and premium, if any) or interest on the Securities or as a sinking fund, if
any, for the Securities (except sinking fund payments, if any, made in
Securities acquired by the Company prior to such event of default), or in
respect of any redemption, retirement, purchase or other acquisition of any of
the Securities. In the event that, notwithstanding the foregoing, any direct
or indirect payment or distribution shall be received by the Trustee or any
holder of the Securities in contravention of the provisions of Section 15.02 or
this paragraph (c), then such payments shall be held for the benefit of, and
shall be paid over to, the holders of all Senior Indebtedness at the time
outstanding or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, for application to the pro rata payment of all such Senior Indebtedness
until all such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
SECTION 15.05.
Nothing contained in this Article Fifteen or
elsewhere in this Indenture, or in any of the Securities, shall
(a) prevent the Company from making any
payment on account of principal of (and premium, if
any), sinking fund or interest on such Securities, or
deposits of moneys for such payments with the Trustee
or any paying agent, except during the existence of
any of the conditions described in Section 15.02 or
Section 15.04, or
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(b) prevent the Trustee, notwithstanding the
existence of any of the conditions described in
Section 15.02 or Section 15.04, from applying any
moneys deposited with it hereunder for such purpose
to the payment of the principal of (and premium, if
any), sinking fund for or interest on the Securities,
unless, at least one full business day prior to the
date upon which such payment would otherwise (except
for the existence of any such condition) become due
and payable, the Trustee shall have received written
notice of the existence of any such condition and
describing the same from the Company or any holder of
Senior Indebtedness or any trustee or agent for or
similar representative of any such holder, or
(c) result in charging the Trustee with
knowledge of the existence of Senior Indebtedness or,
in the absence of written notice of the existence of
any condition described in Sections 15.02 or 15.04
hereof, with knowledge of the existence of such
condition.
SECTION 15.06.
The Trustee shall be entitled to all the
rights set forth in this Article Fifteen in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder. Any amounts due to the Trustee
pursuant to Section 10.07 hereof shall be deemed to be Senior Indebtedness.
SECTION 15.07.
No right of any present or future holder of
any Senior Indebtedness of the Company to enforce subordination as herein
provided, shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
SECTION 15.08.
Each holder of a Security of any series by
his acceptance thereof (i) hereby irrevocably authorizes and empowers (but
without imposing any obligation on) each holder of any Senior Indebtedness at
the time outstanding and such holder's representatives, to demand, sue for,
collect, receive and receipt for such holder's ratable share of payments and
distributions in respect of the Securities which are required to be paid or
delivered to the holders of Senior Indebtedness as provided in Sections 15.02
and 15.04 hereof, and to file and prove all claims therefor and take all such
other action (including the right to vote such holder's ratable share of such
Securities) in the name of the holders of the Securities, or otherwise, as such
holder or such holder's representatives may determine to be necessary or
appropriate for the enforcement of the provisions of Sections 15.02 and 15.04
above; and (ii) agrees to execute and deliver to each holder of Senior
Indebtedness, and such holder's representatives, all such further instruments
confirming the authorization hereinabove set forth, and all such powers of
attorney, proofs of claim, assignments of claim and other instruments, and to
take all such other action as may be requested by such holder or such holder's
representatives in order to enable such holder to enforce all claims upon or in
respect of such holder's ratable share of the Securities.
<PAGE> 71
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Each holder of a Security of any series by
his acceptance thereof authorizes the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate, as between the holders of
Senior Indebtedness and the holders of such Securities, the subordination as
provided in this Article Fifteen, and appoints the Trustee his attorney-in-fact
for any and all such purposes.
SECTION 15.09.
The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness, and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to holders of
Securities or the Company or any other Person moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article
Fifteen or otherwise.
SECTION 15.10.
Notwithstanding anything herein contained to
the contrary, all the provisions of this Indenture shall be subject to the
provisions of this Article Fifteen, except that this Article Fifteen is subject
to the provisions of Section 5.03.
<PAGE> 72
62
IN WITNESS WHEREOF, The Dial Corp has caused
this Indenture to be executed in its corporate name by one of its officers
thereunto duly authorized, and its corporate seal to be hereunto affixed and to
be attested by its Secretary or one of its Assistant Secretaries, and
Continental Bank, National Association, has caused this Indenture to be
executed in its corporate name by one of its authorized officers thereunto duly
authorized, all as of June 1, 1994.
THE DIAL CORP
[Seal]
By: ______________________________
Attest:
__________________________________
CONTINENTAL BANK,
NATIONAL ASSOCIATION,
as Trustee
[Seal]
By: ______________________________
Attest:
__________________________________
<PAGE> 73
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _______, 1994, before me
personally came ________________________, to me personally known, who, being by
me duly sworn, did depose and say that he resides at __________________________;
is _____________________ of The Dial Corp, one of the parties described in and
which executed the above instrument; and that he signed his name thereto by
authority of the board of directors of The Dial Corp.
_________________________________
Name
______________________
[Notarial Seal]
<PAGE> 74
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _______, 1994, before me
personally came ______________________, to me known, who, being by me duly
sworn, did depose and say that he resides at ________________________________;
is ___________________________ of ____________________________, one of the
parties described in and which executed the above instrument; and that he
signed his name thereto by authority of the board of directors of
_______________________.
_______________________________
Name
______________________
[Notarial Seal]
<PAGE> 1
S & S DRAFT
6/24/94
Exhibit 4.8
[FORM OF GLOBAL SECURITY]
[FORM OF FACE]
FOR PURPOSES OF SECTIONS 1273 and 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ___% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ______________________, 19__, [___ AND]
THE YIELD TO MATURITY IS ___% [, THE METHOD USED TO DETERMINE THE YIELD IS
____________________ AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO
THE SHORT ACCRUAL PERIOD OF _________________, 19__ TO _________________, 19__
IS ____% OF THE PRINCIPAL AMOUNT OF THIS SECURITY].
THE DIAL CORP
____% Subordinated ________ due ____
No. [R- ] _______________ $__________________
THE DIAL CORP, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to ____________________________, or
registered assigns, the principal sum of_______________________________ United
States Dollars on ____________________________________ [If the Security is
interest-bearing, insert --, and to pay interest thereon from _________________
_________________, 19__ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, [semiannually in arrears on
______________ in each year], commencing _____________, 19__, at the rate of
____% per annum, until the principal hereof is paid or made available for
payment [If applicable, insert--, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of ____% per annum on any
overdue principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the person in
whose name this Security is registered at the close of business on the Record
Date for such interest, which shall be the _________[or ____________] (whether
or not a Business Day) [, as the case may be,] next preceding such Interest
Payment Date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly
<PAGE> 2
2
provided for will forthwith cease to be payable to the holder on such Record
Date and may either be paid to the person in whose name this Security is
registered at the close of business on a subsequent record date for the payment
of such defaulted interest to be fixed by the Trustee, such record date to be
not less than 5 days prior to the payment of such defaulted interest, notice
whereof shall be given to Holders of Securities of this series not less than 15
days prior to such record date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal of this Security shall bear
interest at the rate of ____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ____% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.] Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at [the office or
agency of the Company maintained for that purpose in The Borough of Manhattan,
The City and State of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts][the option of the Holder (a) at [the Corporate Trust Office of
the Trustee] or such other office or agency of the Company as may be designated
by it for such purpose in the Borough of Manhattan, The City of New York, in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts or (b)
subject to any laws or regulations applicable thereto and to the right of the
Company (limited as provided in the Indenture) to rescind the designation of
any such Paying Agent, at the [main] offices of ______________in _____________,
or at such other offices or agencies as the Company may designate, by check
drawn on, or transfer to a United States dollar account maintained by the payee
with, a bank in The City of New York] [If applicable, insert--; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as it set forth at this place.
<PAGE> 3
3
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or thorough an
Authentication Agent, by manual signature of an authorized signatory, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:____________________ THE DIAL CORP
[Corporate Seal]
By:______________________________
Attest: By:______________________________
______________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the Indenture
described herein.
CONTINENTAL BANK, NATIONAL ASSOCIATION,
as Trustee
By:__________________________________________
Authorized Signatory
<PAGE> 4
[Form of Reverse]
This Security is one of a duly authorized issue of subordinated
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dates as of June 1, 1994
(herein called the "Indenture"), between the Company and Continental Bank,
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Indebtedness and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $____________] in
denominations of $_________ and any integral multiple thereof.
[If applicable, insert-- The Securities of this series are subject to
redemption [(1)] [If applicable, insert-- on ____________________________ in
any year commencing with the year _________ and ending with the year _________
through operation of the sinking fund for this series at a Redemption Price
equal to [Insert formula for determining the amount], [and] (2)] [If
applicable, insert-- at any time [on or after _______________], as a whole or
in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [on or before
____________, ______________%, and if redeemed] during the 12-month period
beginning ___________ of the years indicated,
<TABLE>
<S> <C> <C> <C>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,]
[If applicable, insert-- [and ( )] under the circumstances described in the
next [two] succeeding paragraph[s] at a Redemption Price equal to [Insert
formula for determining the amount]] [If the Security is interest-bearing,
insert--, together in the case of any such redemption [If applicable, insert--
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this Security, of one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture].
[If applicable, insert-- The Securities of this series are subject to
redemption (1) on _____________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at the Redemption Prices for
<PAGE> 5
2
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after _____], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period beginning _______ of
the years indicated.
Redemption Price Redemption Price for
for Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- ----------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
[If applicable, insert-- and (3) under the circumstances described in the next
[two] succeeding paragraph[s] at a Redemption Price equal to [Insert formula
for determining the amount]] [If the Security is interest-bearing, insert--,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose State
Maturity is on or prior to such Redemption Date will be payable to the Holder
of this Security, or one or more Predecessor Securities, of record at the close
of business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture].]
[Notwithstanding the foregoing, the Company may not, prior to
________, redeem any Securities of this series as contemplated by Clause [(2)]
above as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with the generally accepted financial
practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption
on __________ in each year, beginning with the year _____ and ending with the
year _____ of [not less than] $_____ [("mandatory sinking fund") and not more
than $___] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made -- in the
[described order] order in which they become due.]]
<PAGE> 6
3
Notice of redemption will be given by mail to holders of
Securities, not less than 30 nor more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
[If applicable, insert -- Subject to and upon compliance with
the provisions of the Indenture and any indenture supplemental thereto, Board
Resolution or Officers' Certificate related hereto, the Holder hereof has the
right, at his option, to convert this Security into Common Shares of the
Company at any time before the close of business on __________. [If this
Security is called for redemption, the Holder may convert it at any time before
the close of business on the Redemption Date by delivering the Security for
conversion in accordance with the redemption notice.] The initial conversion
price is $_______ per share, subject to adjustment in certain events as more
fully described in the Indenture, Board Resolution or Officers' Certificate
relating hereto.
To convert this Security, a Holder must (1) complete and sign
the Conversion Notice as provided herein on the back of the Security, (2)
surrender the Security to the Company at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
(3) furnish appropriate endorsements and transfer documents if required by the
Company and/or the Trustee, and (4) pay any transfer or similar tax if
required.
As more fully described in the Indenture, Board Resolution or
Officers' Certificate relating hereto, if the Company is a party to a
consolidation or merger or a transfer of all or substantially all of its
assets, the right to convert this Security into Common Shares of the Company
may be changed into a right to convert it into securities, cash or other assets
of the Company or another person.]
The indebtedness evidenced by the Securities is, to the extent
and in the manner set forth in the Indenture, expressly subordinated and
subject in right or payment to the prior payment in full of all Senior
Indebtedness and, upon certain events of insolvency, to the prior payment of
all Other Senior Obligations, and this Security is issued subject to such
provisions of the Indenture. Each Holder of this Security, by accepting the
same, agrees to and shall be bound by such provisions of the Indenture and
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate such subordination as provided in the
Indenture and appoints the Trustee his attorney-in-fact for any and all such
purposes.
<PAGE> 7
4
[If applicable, insert-- The Securities of this series are
subject to repayment in whole [or in part] [but not in part], in integral
multiples of $____, on _______ [and ______] at the option of the Holder hereof
at a Repayment Price equal to ____% of the principal amount thereof [to be
repaid], together with interest thereon accrued on the Repayment Date, all as
provided in the Indenture[; provided, however, that the principal amount of
this Security may not be repaid in part if, following such repayment, the
unpaid principal amount of this Security would be less than [$_____] [the
minimum authorized denomination for Securities of this series].] To be repaid
at the option of the holder, this Security, with the "Option to Elect
Repayment" form duly completed by the holder hereof, must be received by the
Company at its office or agency maintained for that purpose in the Borough of
Manhattan, the City and State of New York[, which will be located initially at
the office of the Trustee at __________], not earlier than 30 days nor later
than 15 days prior to the Repayment Date. Exercise of such option by the
holder of the Security shall be irrevocable unless waived by the Company. [In
the event of repayment of this Security at the option of the holder in part
only, a new Security or Securities of this series for the portion hereof not
repaid will be issued in the name of the Holder hereof upon the cancellation
hereof.]]
If an Event of Default with respect to Securities of this
series shall occur and be continuing, an amount of principal of the Securities
of this series may be declared due and payable in the manner and with the
effect provided in the Indenture. Such amount shall be equal to -- insert
formula for determining the amount. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company's obligations
in respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the holders of 66-2/3% in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the holder of this Security shall be conclusive and
binding upon such holder and upon all future holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
<PAGE> 8
5
As set forth in, and subject to, the provisions of the
Indenture, no holder of any Security of this series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to this series,
the holders of not less than 25% in principal amount of the Outstanding
Securities of this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the holders of a majority in
principal amount of the Outstanding Securities of this series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not
apply to a suit instituted by the holder hereof for the enforcement of payment
of the principal of (and premium, if any) or [any] interest on this Security on
or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and [any] interest [(including additional amounts, as
described on the face hereof)] on this Security at the times, place[s] and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in [any place where the
principal of [(and premium, if any)] and [any] interest on this Security are
payable] [the Borough of Manhattan, The City of New York, or, subject to any
laws or regulations applicable thereto and to the right of the Company (limited
as provided in the Indenture) to rescind the designation of any such transfer
agent, at the [main] offices of __________ in __________ and __________
in__________ or at such other offices or agencies as the Company may
designate], duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form, without coupons, in denominations of $ ________________ and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the holder surrendering
the same.
<PAGE> 9
6
No service charge shall be made for any such registration of
transfer or exchange,but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE> 10
7
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security [(or the portion thereof specified
below)], pursuant to its terms, on the "Repayment Date" first occurring after
the date of receipt of the within Security as specified below, at a Repayment
Price equal to __________% of the principal amount thereof, together with
interest thereon accrued to the Repayment Date, to the undersigned at:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Please Print or Type Name and Address of the Undersigned.)
For this Option to Elect Repayment to be effective, this
Security with the Option to Elect Repayment duly completed must be received not
earlier than 30 days prior to the Repayment Date and not later than 15 days
prior to the Repayment Date by the Company at its office or agency in the
Borough of Manhattan, the City and State of New York[, which will be located
initially at the office of the Trustee at________________________].
[If less than the entire principal amount of the within
Security is to be repaid, specify the portion thereof (which shall be
$________] or an integral multiple thereof) which is to be repaid: $_________.
The principal amount of this Security may not be repaid in part if, following
such repayment, the unpaid amount of this Security would be less than
[$______________[the minimum authorized denomination for Securities of this
series].]
[If less than the entire principal amount of the within
Security is to be repaid, specify the denomination(s) of the Securit(ies) to be
issued for the unpaid amount ($___________or any integral multiple of
$_____________); $_____________.]
Dated:
__________________________________
Note: The signature to this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within Security in every
particular without alterations or
enlargement or any change
whatsoever.
<PAGE> 11
If applicable, insert the following:
CONVERSION NOTICE
To The Dial Corp
The undersigned Holder of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof below
designated, into Common Shares of The Dial Corp in accordance with the terms of
the Indenture referred to in this Security, and in accordance with the
Applicable Supplemental Indenture, Board Resolution or Officers' Certificate,
as the case may be, and directs that the shares issuable and deliverable upon
the conversion, together with any check in payment for fractional shares and
any Securities representing any uncoverted principal amount hereof, be issued
and delivered to Holder hereof unless a name of a person has been indicated
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned Holder will pay all transfer taxes payable with
respect thereto. Any amount to be paid by the undersigned on account of
interest accompanies this Security.
Date: ____________________________ _________________________________
Signature
Fill in for registration of shares: Principal Amount to be converted
__________________________________ (in an integral multiple of $1,000,
__________________________________ if less than all):
__________________________________
__________________________________ $______________
__________________________________ _________________________________
Please print name Social Security or other
__________________________________ Taxpayer Identification
Please print address (including Number
zip code)
<PAGE> 1
S & S DRAFT
6/24/94
EXHIBIT 4.9(a)
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
________________________________________________________________________________
THE DIAL CORP
and
________________________________,
Debt Warrant Agent
________________________
DEBT WARRANT AGREEMENT
Dated as of______________
__________________
________________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS*
Page
____
<TABLE>
<S> <C>
PARTIES................................................................ 1
RECITALS............................................................... 1
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
1.01. Issuance of Debt Warrants....................................... 1
1.02. Form and Execution of Debt Warrant Certificates................. 2
1.03. Issuance and Delivery of Debt Warrant Certificates.............. 3
1.04. Temporary Debt Warrant Certificates ............................ 3
1.05. Payment of Taxes................................................ 4
1.06. "Holder"........................................................ 4
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
2.01. Duration of Debt Warrants....................................... 5
2.02. Exercise of Debt Warrants....................................... 5
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
3.01. No Rights as Holder of Underlying Debt Security Conferred by Debt
Warrants or Debt Warrant Certificates........................... 6
3.02. Lost, Stolen, Destroyed or Mutilated Debt Warrant Certificates... 6
3.03. Holder of Debt Warrants May Enforce Rights....................... 7
_________________________
* The Table of Contents is not part of the Debt Warrant Agreement.
</TABLE>
<PAGE> 3
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
<TABLE>
<S> <C>
4.01. [Debt Warrant Register;] Exchange and Transfer of Debt Warrants... 7
4.02. Treatment of Holders of Debt Warrants............................. 8
4.03. Cancellation of Debt Warrant Certificates......................... 8
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
5.01. Debt Warrant Agent ............................................. 9
5.02. Conditions of Debt Warrant Agent's Obligations................... 9
5.03. Resignation and Removal; Appointment of Successor................ 11
5.04. Office........................................................... 13
ARTICLE VI
MISCELLANEOUS
6.01. Consolidation or Merger of the Company and Conveyance or Transfer
Permitted Subject to Certain Conditions........................ 13
6.02. Rights and Duties of Successor Corporation...................... 13
6.03. Supplements and Amendments...................................... 14
6.04. Notices and Demands to the Company and Debt Warrant Agent....... 14
6.05. Addresses....................................................... 14
6.06. Applicable Law.................................................. 15
6.07. Delivery of Prospectus.......................................... 15
6.08. Obtaining Governmental Approvals................................ 15
6.09. Persons Having Rights Under Debt Warrant Agreement.............. 15
6.10. Headings........................................................ 15
6.11. Counterparts.................................................... 15
6.12. Inspection of Agreement......................................... 16
TESTIMONIUM............................................................. 16
SIGNATURES.............................................................. 16
</TABLE>
-ii-
<PAGE> 4
THIS DEBT WARRANT AGREEMENT, dated as of _________________,
between The Dial Corp, a Delaware corporation (the "Company"), and __________,
a __________ organized and existing under the laws of __________, as warrant
agent (the "Debt Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as
of _______________, 19__ (the "Indenture") with [The Chase Manhattan Bank,
N.A.] [______________], as trustee (the "Trustee"), providing for the issuance
by the Company from time to time, in one or more series, of debt securities
evidencing its unsecured, [senior] [subordinated] indebtedness (such debt
securities, being referred to as the "Securities"); and
WHEREAS, the Company proposes to issue warrants (the "Debt
Warrants") representing the right to purchase Debt Securities of one or more
series (the "Underlying Debt Securities"); and
WHEREAS, the Company has duly authorized the execution and
delivery of this Debt Warrant Agreement to provide for the issuance of Debt
Warrants to be exercisable at such times and for such prices, and to have such
other provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
1.01. Issuance of Debt Warrants.
__________________________
Debt Warrants may be issued from time to time, together with or separately
from any Securities (the "Offered Debt Securities"). Prior to the issuance of
any Debt Warrants, there shall be established by or pursuant to a resolution
or resolutions duly adopted by the Company's Board of Directors or by any
committee thereof duly authorized to act with respect thereto (a "Board
Resolution"):
(a) the title and aggregate number of such Debt Warrants;
(b) the offering price of such Debt Warrants;
(c) the title, aggregate principal amount, ranking and
terms [(including the subordination and conversion provisions)] of the
Underlying Debt Securities that may be purchased upon exercise of such
Debt Warrants;
<PAGE> 5
2
(d) the principal amount of Underlying Debt Securities
that may be purchased upon exercise of each Debt Warrant and the
price, or the manner of determining the price (the "Debt Warrant
Price"), at which such principal amount may be purchased upon such
exercise;
(e) the time or times at which, or period or periods
during which, such Debt Warrants may be exercised and the final date
on which such Debt Warrants may be exercised (the "Expiration Date");
(f) the terms of any right to redeem such Debt Warrants;
(g) whether such Debt Warrants are to be issued with any
Offered Debt Securities and, if so, the title, aggregate principal
amount and terms of any such Offered Debt Securities; the number of
Debt Warrants to be issued with each $1,000 principal amount of such
Offered Debt Securities (or such other principal amount of such
Offered Debt Securities as is provided for in the Board Resolution);
(h) the date, if any, on and after which such Debt
Warrants and such Offered Debt Securities will be separately
transferable (the "Detachable Date"); and
(i) any other terms of such Debt Warrants not
inconsistent with the provisions of this Agreement.
1.02. Form and Execution of Debt Warrant Certificates.
________________________________________________
(a) The Debt Warrants shall be evidenced by warrant
certificates (the "Debt Warrant Certificates"), which may be in
registered or bearer form and otherwise shall be substantially in such
form or forms as shall be established by or pursuant to a Board
Resolution. Each Debt Warrant Certificate, whenever issued, shall be
dated the date it is countersigned by the Debt Warrant Agent and may
have such letters, numbers or other identifying marks and such legends
or endorsements printed, lithographed or engraved thereon as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law, rule or regulation or with
any rule or regulation of any securities exchange on which the Debt
Warrants may be listed, or to conform to usage, as the officer of the
Company executing the same may approve (such officer's execution
thereof to be conclusive evidence of such approval). Each Debt
Warrant Certificate shall evidence one or more Debt Warrants.
(b) The Debt Warrant Certificates shall be signed in the
name and on behalf of the Company by its Chairman, its President or a
Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or a word or words added before
or after the title "Vice President") under its corporate seal, and
attested by its Secretary or an Assistant Secretary. Such signatures
may be manual or facsimile signatures of the present or
<PAGE> 6
3
any future holder of any such office and may be imprinted or
otherwise reproduced on the Debt Warrant Certificates. The seal of
the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt
Warrant Certificates.
(c) No Debt Warrant Certificate shall be valid for any
purpose, and no Debt Warrant evidenced thereby shall be deemed issued
or exercisable, until such Debt Warrant Certificate has been
countersigned by the manual or facsimile signature of the Debt Warrant
Agent. Such signature by the Debt Warrant Agent upon any Debt Warrant
Certificate executed by the Company shall be conclusive evidence that
the Debt Warrant Certificate so countersigned has been duly issued
hereunder.
(d) In case any officer of the Company who shall have
signed any Debt Warrant Certificate either manually or by facsimile
signature shall cease to be such officer before the Debt Warrant
Certificate so signed shall have been countersigned and delivered by
the Debt Warrant Agent, such Debt Warrant Certificate nevertheless
may be countersigned and delivered as though the person who signed
such Debt Warrant Certificate had not ceased to be such officer of
the Company; and any Debt Warrant Certificate may be signed on behalf
of the Company by such person as, at the actual date of the execution
of such Debt Warrant Certificate, shall be the proper officer of the
Company, although at the date of the execution of this Agreement such
person was not such an officer.
1.03. Issuance and Delivery of Debt Warrant Certificates.
___________________________________________________
At any time and from time to time after the execution and delivery of this
Agreement, the Company may deliver Debt Warrant Certificates executed by the
Company to the Debt Warrant Agent for countersignature. Except as provided in
the following sentence, the Debt Warrant Agent shall thereupon countersign and
deliver such Debt Warrant Certificates to or upon the written request of the
Company. Subsequent to the original issuance of a Debt Warrant Certificate
evidencing Debt Warrants, the Debt Warrant Agent shall countersign a new Debt
Warrant Certificate evidencing such Debt Warrants only if such Debt Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Debt Warrant Certificates evidencing such Debt Warrants or in
connection with their transfer, as hereinafter provided.
1.04. Temporary Debt Warrant Certificates.
____________________________________
Pending the preparation of definitive Debt Warrant Certificates, the Company
may execute, and upon the order of the Company the Debt Warrant Agent shall
countersign and deliver, temporary Debt Warrant Certificates that are printed,
lithographed, typewritten, mimeographed or otherwise produced, substantially
of the tenor of the definitive Debt Warrant Certificates in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officer executing such Debt Warrant Certificates may
determine, as evidenced by such officer's execution of such Debt Warrant
Certificates.
<PAGE> 7
4
If temporary Debt Warrant Certificates are issued, the
Company will cause definitive Debt Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Debt Warrant
Certificates, the temporary Debt Warrant Certificates shall be exchangeable for
definitive Debt Warrant Certificates upon surrender of the temporary Debt
Warrant Certificates at the corporate trust office of the Debt Warrant Agent
[or ___________________], without charge to the Holder, as defined in Section
1.06 hereof. Upon surrender for cancellation of any one or more temporary Debt
Warrant Certificates, the Company shall execute and the Debt Warrant Agent
shall countersign and deliver in exchange therefor definitive Debt Warrant
Certificates representing the same aggregate number of Debt Warrants. Until so
exchanged, the temporary Debt Warrant Certificates shall in all respects be
entitled to the same benefits under this Agreement as definitive Debt Warrant
Certificates.
1.05. Payment of Taxes.
_________________
The Company will pay all stamp and other duties, if any, to which this
Agreement or the original issuance of the Debt Warrants or Debt Warrant
Certificates may be subject under the laws of the United States of America or
any state or locality.
1.06. "Holder".
_________
The term "Holder" or "Holders", as used herein with reference to a Debt
Warrant Certificate, shall mean [if registered Debt Warrants -- the person or
persons in whose name such Debt Warrant Certificate shall then be registered
as set forth in the Debt Warrant Register to be maintained by the Debt Warrant
Agent pursuant to Section 4.01 for that purpose] [if bearer Debt Warrants --
the bearer of such Debt Warrant Certificate] or, in the case of Debt Warrants
that are issued with Offered Debt Securities and cannot then be transferred
separately therefrom, [if registered Offered Debt Securities and Debt Warrants
that are not then detachable -- the person or persons in whose name the
related Offered Debt Securities shall be registered as set forth in the
security register to be maintained by the security registrar for such Offered
Debt Securities] [if bearer Offered Debt Securities and Debt Warrants that are
not then detachable -- the bearer of the related Offered Debt Security], prior
to the Detachable Date. [If registered Offered Debt Securities and Debt
Warrants that are not then detachable --The Company will, or will cause the
security registrar of any such Offered Debt Securities to, make available to
the Debt Warrant Agent at all times (including on and after the Detachable
Date, in the case of Debt Warrants originally issued with Offered Debt
Securities and not subsequently transferred separately therefrom) such
information as to holders of Offered Debt Securities with Debt Warrants as may
be necessary to keep the Debt Warrant Register up to date.]
<PAGE> 8
5
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
2.01. Duration of Debt Warrants.
__________________________
Each Debt Warrant may be exercised at the time or times, or during the period
or periods, provided by or pursuant to the Board Resolution relating thereto
and specified in the Debt Warrant Certificate evidencing such Debt Warrant.
Each Debt Warrant not exercised at or before 5:00 P.M., New York City time,
on its Expiration Date shall become void, and all rights of the Holder of such
Debt Warrant thereunder and under this Agreement shall cease.
2.02. Exercise of Debt Warrants.
__________________________
(a) The Holder of a Debt Warrant shall have the right, at its
option, to exercise such Debt Warrant and, subject to subsection (f) of
this Section 2.02, purchase the principal amount of Underlying Debt
Securities provided for therein at the time or times or during the period
or periods referred to in Section 2.01 and specified in the Debt Warrant
Certificate evidencing such Debt Warrant. Except as may be provided in a
Debt Warrant Certificate, a Debt Warrant may be exercised by completing the
form of election to purchase set forth on the reverse side of the Debt
Warrant Certificate, by duly executing and delivering the same, together
with payment in full of the Debt Warrant Price in lawful money of the
United States of America, in cash or by certified or official bank check or
by bank wire transfer, to the Debt Warrant Agent. Except as may be
provided in a Debt Warrant Certificate, the date on which such Debt Warrant
Certificate and payment are received by the Debt Warrant Agent as aforesaid
shall be deemed to be the date on which the Debt Warrant is exercised and
the Underlying Debt Securities issued.
(b) Upon the exercise of a Debt Warrant, the Company
shall issue, pursuant to the Indenture, in authorized denominations to or
upon the order of the Holder of such Debt Warrant, the Underlying Debt
Securities to which such Holder is entitled, in the form required under
such Indenture, registered, in the case of Underlying Debt Securities in
registered form, in such name or names as may be directed by such Holder.
(c) If fewer than all of the Debt Warrants evidenced by a
Debt Warrant Certificate are exercised, the Company shall execute, and an
authorized officer of the Debt Warrant Agent shall countersign and deliver,
a new Debt Warrant Certificate evidencing the number of Debt Warrants
remaining unexercised.
(d) The Debt Warrant Agent shall deposit all funds
received by it in payment of the Debt Warrant Price in the account of the
Company maintained with it for such purpose and shall advise the Company by
telephone by 5:00 P.M., New York City time, of each day on which a payment
of the Debt Warrant Price for Debt Warrants is received of the amount so
deposited in its account. The Debt Warrant Agent shall promptly confirm
such telephone advice in writing to the Company.
<PAGE> 9
6
(e) The Debt Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the Trustee of (i) the
number of Debt Warrants of each title exercised as provided herein, (ii)
the instructions of each Holder with respect to delivery of the Underlying
Debt Securities to which such Holder is entitled upon such exercise, (iii)
the delivery of Debt Warrant Certificates evidencing the balance, if any,
of the Debt Warrants remaining unexercised after such exercise, and (iv)
such other information as the Company or the Trustee shall reasonably
require. Such notice may be given by telephone to be promptly confirmed
in writing.
(f) The Holder, and not the Company, shall be required
to pay any stamp or other tax or other governmental charge that may be
imposed in connection with any transfer involved in the issuance of the
Underlying Debt Securities; and in the event that any such transfer is
involved, the Company shall not be required to issue any Underlying Debt
Securities (and the Holder's purchase of the Underlying Debt Securities
upon the exercise of such Holder's Debt Warrant shall not be deemed to
have been consummated) until such tax or other charge shall have been paid
or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
3.01. No Rights as Holder of Underlying Debt Security
_______________________________________________
Conferred by Debt Warrants or Debt Warrant Certificates.
________________________________________________________
No Debt Warrant or Debt Warrant Certificate shall entitle the Holder to any of
the rights of a holder of Underlying Debt Securities, including, without
limitation, the right to receive the payment of principal of (or premium, if
any) or interest, if any, on Underlying Debt Securities or to enforce any of
the covenants in the Indenture.
3.02. Lost, Stolen, Destroyed or Mutilated Debt Warrant
_________________________________________________
Certificates.
_____________
Upon receipt by the Company and the Debt Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Debt Warrant Certificate and of indemnity (other than in
connection with any mutilated Debt Warrant Certificates surrendered to the
Debt Warrant Agent for cancellation) reasonably satisfactory to them, the
Company shall execute, and the Debt Warrant Agent shall countersign and
deliver, in exchange for or in lieu of each lost, stolen, destroyed or
mutilated Debt Warrant Certificate, a new Debt Warrant Certificate
evidencing a like number of Debt Warrants of the same title. Upon the issuance
of a new Debt Warrant Certificate under this Section, the Company may require
the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection therewith and any other
<PAGE> 10
7
expenses (including the fees and expenses of the Debt Warrant Agent) in
connection therewith. Every substitute Debt Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Debt Warrant Certificate shall represent a contractual obligation of the
Company, whether or not such lost, stolen or destroyed Debt Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Debt Warrant Certificates, duly executed and delivered hereunder, evidencing
Debt Warrants of the same title. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of lost, stolen, destroyed or mutilated Debt Warrant
Certificates.
3.03. Holder of Debt Warrants May Enforce Rights.
___________________________________________
Notwithstanding any of the provisions of this Agreement, a Holder, without the
consent of the Debt Warrant Agent, the Trustee, the holder of any Underlying
Debt Securities or the Holder of any other Debt Warrant, may, on its own behalf
and for its own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise in respect
of, its right to exercise its Debt Warrant or Debt Warrants in the manner
provided in this Agreement and its Debt Warrant Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
4.01. [Debt Warrant Register;] Exchange and Transfer of Debt
______________________________________________________
Warrants.
_________
[If registered Debt Warrants -- the Debt Warrant Agent shall maintain, at its
corporate trust office [or at ____________________], a register (the "Debt
Warrant Register") in which, upon the issuance of Debt Warrants, or on and
after the Detachable Date in the case of Debt Warrants not separately
transferable prior thereto, and, subject to such reasonable regulations as the
Debt Warrant Agent may prescribe, it shall register Debt Warrant Certificates
and exchanges and transfers thereof. The Debt Warrant Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time.]
Except as provided in the following sentence, upon surrender
at the corporate trust office of the Debt Warrant Agent [or at
_______________], Debt Warrant Certificates may be exchanged for one or more
other Debt Warrant Certificates evidencing the same aggregate number of Debt
Warrants of the same title, or may be transferred in whole or in part. A Debt
Warrant Certificate evidencing Debt Warrants that are not then transferable
separately from the Offered Debt Security with which they were issued may be
exchanged or transferred prior to its Detachable Date only together with such
Offered Debt Security and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Debt Security; and on or prior to
the Detachable Date, [if registered Offered Debt
<PAGE> 11
8
Securities and Debt Warrants -- each exchange or transfer of such Offered Debt
Security on the security register of the Offered Debt Securities shall operate
also to exchange or transfer the related Debt Warrants] [if bearer Offered Debt
Securities and Debt Warrants -- an exchange or transfer of possession of the
related Offered Debt Security shall operate also to exchange or transfer the
related Debt Warrants]. [If registered Debt Warrants -- A transfer shall be
registered upon surrender of a Debt Warrant Certificate to the Debt Warrant
Agent at its corporate trust office [or at _______________] for transfer,
properly endorsed or accompanied by appropriate instruments of transfer and
written instructions for transfer, all in form satisfactory to the Company and
the Debt Warrant Agent.] Whenever a Debt Warrant Certificate is surrendered for
exchange or transfer, the Debt Warrant Agent shall countersign and deliver to
the person or persons entitled thereto one or more Debt Warrant Certificates
duly executed by the Company, as so requested. The Debt Warrant Agent shall
not be required to effect any exchange or transfer which will result in the
issuance of a Debt Warrant Certificate evidencing a fraction of a Debt Warrant.
All Debt Warrant Certificates issued upon any exchange or transfer of a Debt
Warrant Certificate shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Agreement,
as the Debt Warrant Certificate surrendered for such exchange or transfer.
No service charge shall be made for any exchange or transfer
of Debt Warrants, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any such exchange or transfer, in accordance with Section 2.02(f) hereof.
4.02. Treatment of Holders of Debt Warrants.
______________________________________
Every Holder of a Debt Warrant, by accepting the Debt Warrant Certificate
evidencing the same, consents and agrees with the Company, the Debt Warrant
Agent and with every other Holder of Debt Warrants of the same title that the
Company and the Debt Warrant Agent may treat the Holder of a Debt Warrant
Certificate (or, if the Debt Warrant Certificate is not then detachable, the
Holder of the related Offered Debt Security) as the absolute owner of such
Debt Warrant for all purposes and as the person entitled to exercise the
rights represented by such Debt Warrant, any notice to the contrary
notwithstanding.
4.03. Cancellation of Debt Warrant Certificates.
__________________________________________
In the event that the Company shall purchase, redeem or otherwise acquire any
Debt Warrants after the issuance thereof, the Debt Warrant Certificate or
Certificates evidencing such Debt Warrants shall thereupon be delivered to the
Debt Warrant Agent and be cancelled by it. The Debt Warrant Agent shall also
cancel any Debt Warrant Certificate (including any mutilated Debt Warrant
Certificate) delivered to it for exercise, in whole or in part, or for exchange
[or transfer] [if Debt Warrant Certificates are issued in bearer form -- ,
except that Debt Warrant Certificates delivered to the Debt Warrant Agent in
exchange for Debt Warrant Certificates of other denominations may be retained
by the Debt Warrant Agent for reissue]. Debt Warrant
<PAGE> 12
9
Certificates so cancelled shall be delivered by the Debt Warrant Agent to the
Company from time to time, or disposed of in accordance with the instructions
of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
5.01. Debt Warrant Agent.
___________________
The Company hereby appoints ____________________ as Debt Warrant Agent of the
Company in respect of the Debt Warrants and the Debt Warrant Certificates upon
the terms and subject to the conditions set forth herein; and _________________
hereby accepts such appointment. The Debt Warrant Agent shall have the powers
and authority granted to and conferred upon it hereby and such further powers
and authority to act on behalf of the Company as the Company may hereafter
grant to or confer upon it. All of the terms and provisions with respect to
such powers and authority contained in any Debt Warrant Certificate are
subject to and governed by the terms and provisions hereof.
5.02. Conditions of Debt Warrant Agent's Obligations.
_______________________________________________
The Debt Warrant Agent accepts its obligations set forth herein upon the terms
and conditions hereof, including the following, to all of which the Company
agrees and to all of which the rights hereunder of the Holders shall be subject:
(a) Compensation and Indemnification.
_________________________________
The Company agrees to promptly pay the Debt Warrant Agent the
compensation set forth in Exhibit A hereto and to reimburse the Debt
Warrant Agent for reasonable out-of-pocket expenses (including
counsel fees) incurred by the Debt Warrant Agent in connection with
the services rendered hereunder by the Debt Warrant Agent. The
Company also agrees to indemnify the Debt Warrant Agent for, and to
hold it harmless against, any loss, liability or expense (including
the reasonable costs and expenses of defending against any claim of
liability) incurred without negligence or bad faith on the part of
the Debt Warrant Agent arisin out of or in connection with its
appointment as Debt Warrant Agent hereunder.
(b) Agent for the Company.
______________________
In acting under this Agreement and in connection with any Debt
Warrant Certificate, the Debt Warrant Agent is acting solely as agent
of the Company and does not assume any obligation or relationship of
agency or trust for or with any Holder.
(c) Counsel.
________
The Debt Warrant Agent may consult with counsel satisfactory to it,
and the advice of such counsel shall be full and complete
<PAGE> 13
10
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(d) Documents.
__________
The Debt Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted
by it in reliance upon any notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the
proper parties.
(e) Officer's Certificate.
______________________
Whenever in the performance of its duties hereunder the Debt Warrant
Agent shall reasonably deems it necessary that any fact or matter be
proved or established by the Company prior to taking, suffering or
omitting any action hereunder the Debt Warrant Agent may (unless
other evidence in respect thereof be herein specifically prescribed),
in the absence of bad faith on its part, rely upon a certificate
signed by the Chairman, the President, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company (an "Officer's Certificate") delivered by
the Company to the Debt Warrant Agent.
(f) Actions Through Agents.
_______________________
The Debt Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Debt Warrant
Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorney or agent or for any loss
to the Company resulting from such neglect or misconduct; provided,
however, that reasonable care shall have been exercised in the
selection and continued employment of such attorneys and agents.
(g) Certain Transactions.
_____________________
The Debt Warrant Agent, and any officer, director or employee
thereof, may become the owner of, or acquire any interest in, any
Debt Warrant, with the same rights that he, she or it would have if
it were not the Debt Warrant Agent, and, to the extent permitted by
applicable law, he, she or it may engage or be interested in any
financial or other transaction with the Company and may serve on, or
as depositary, trustee or agent for, any committee or body of holders
of Underlying Debt Securities or other obligations of the Company as
if it were not the Debt Warrant Agent. Nothing in this Agreement
shall be deemed to prevent the Debt Warrant Agent from acting as
Trustee under the Indenture.
(h) No Liability for Interest.
__________________________
The Debt Warrant Agent shall not be liable for interest on any
monies at any time received by it pursuant to any of the provisions
of this Agreement or of the Debt Warrant Certificates, except as
otherwise agreed with the Company.
<PAGE> 14
11
(i) No Liability for Invalidity.
____________________________
The Debt Warrant Agent shall incur no liability with respect to the
validity of this Agreement (except as to the due execution hereof by
the Debt Warrant Agent) or any Debt Warrant Certificate (except as to
the countersignature thereof by the Debt Warrant Agent).
(j) No Responsibility for Company Representations.
______________________________________________
The Debt Warrant Agent shall not be responsible for any of the
recitals or representations contained herein (except as to such
statements or recitals as describe the Debt Warrant Agent or action
taken or to be taken by it) or in any Debt Warrant Certificate
(except as to the Debt Warrant Agent's countersignature on such Debt
Warrant Certificate), all of which recitals and representations are
made solely by the Company.
(k) No Implied Obligations.
_______________________
The Debt Warrant Agent shall be obligated to perform only such duties
as are specifically set forth herein, and no other duties or
obligations shall be implied. The Debt Warrant Agent shall not be under
any obligation to take any action hereunder that may subject it to any
expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Debt Warrant Agent
shall not be accountable or under any duty or responsibility for the
use by the Company of any Debt Warrant Certificate countersigned by the
Debt Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of the
issuance or exercise of Debt Warrants. The Debt Warrant Agent shall
have no duty or responsibility in case of any default by the Company in
the performance of its covenants or agreements contained herein or in
any Debt Warrant Certificate or in case of the receipt of any written
demand from a Holder with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or,
except as provided in Section 6.04 hereof, to make any demand upon the
Company.
5.03. Resignation and Removal; Appointment of Successor.
__________________________________________________
(a) The Debt Warrant Agent may at any time resign as such by
giving written notice to the Company, specifying the date on which such
resignation shall become effective; provided that such date shall not
be less than 90 days after the date on which such notice is given,
unless the Company agrees to accept a shorter notice. The Debt Warrant
Agent may be removed at any time by the filing with it of an instrument
in writing signed on behalf of the Company and specifying such removal
and the date when it shall become effective. Notwithstanding the two
preceding sentences, such resignation or removal shall take effect only
upon the appointment by the Company, as hereinafter provided, of a
successor Debt Warrant Agent (which shall be a bank or trust company
organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized
under the laws of such jurisdiction to exercise corporate trust powers
and having at the time of its appointment as Debt Warrant Agent a
combined capital and surplus (as set forth in its most
<PAGE> 15
12
recent published report of condition) of at least $50,000,000)
and the acceptance of such appointment by such successor Debt Warrant
Agent.
(b) In case at any time the Debt Warrant Agent shall
resign, or shall be removed, or shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or shall file a petition
seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable federal
or state bankruptcy law or similar law, or make an assignment for the
benefit of its creditors, or consent to the appointment of a receiver
or custodian for all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian for it or for all or any substantial part
of its property shall be appointed, or if an order of any court shall
be entered for relief against it under the provisions of Title 11 of
the United States Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law,
or if any public officer shall have taken charge or control of the Debt
Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, a successor Debt Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Debt Warrant Agent.
Upon the appointment as aforesaid of a successor Debt Warrant Agent and
acceptance by the successor Debt Warrant Agent of such appointment, the
Debt Warrant Agent so superseded shall cease to be Debt Warrant Agent
hereunder.
(c) Any successor Debt Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the
Company an instrument accepting such appointment hereunder, and
thereupon such successor Debt Warrant Agent, without any further act,
deed or conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as Debt Warrant Agent
hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Debt Warrant Agent
shall be entitled to receive, [the Debt Warrant Register and] all
monies, securities and other property on deposit with or held by such
predecessor (together with any books and records relating thereto), as
Debt Warrant Agent hereunder.
(d) The Company shall cause notice of the appointment of
any successor Debt Warrant Agent to be [if registered Debt Warrants --
mailed by first-class mail, postage prepaid, to each Holder at its
address appearing on the Debt Warrant Register or, in the case of Debt
Warrants that are issued with Offered Debt Securities and cannot then
be transferred separately therefrom, on the security register for the
Offered Debt Securities] [if bearer Debt Warrants -- published in an
Authorized Newspaper (as defined in Section 1.01 of the Indenture) in
The City of New York [and in such other city or cities as may be
specified by the Company] at least twice within any seven-day period].
Such notice shall set forth the name and address of the successor Debt
Warrant Agent. Failure to give any notice provided
<PAGE> 16
13
for in this Section 5.03(d), or any defect therein, shall not,
however, affect the legality or validity of the appointment of the
successor Debt Warrant Agent.
(e) Any corporation into which the Debt Warrant Agent may
be merged or converted, or any corporation with which the Debt Warrant
Agent may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Debt Warrant Agent
shall be a party, or any corporation to which the Debt Warrant Agent
shall sell or otherwise transfer all or substantially all of its assets
and business, shall be the successor Debt Warrant Agent under this
Agreement without the execution or filing of any paper, the giving of
any notice to Holders or any further act on the part of the parties
hereto, provided that such corporation be qualified as aforesaid.
5.04. Office.
_______
The Company will maintain an office or agency where Debt Warrant Certificates
may be presented for exchange[, transfer] or exercise. The office initially
designated for this purpose shall be the corporate trust office of the Debt
Warrant Agent at _______________.
ARTICLE VI
MISCELLANEOUS
6.01. Consolidation or Merger of the Company and Conveyance
_____________________________________________________
or Transfer Permitted Subject to Certain Conditions.
____________________________________________________________
To the extent permitted in the Indenture, the Company may consolidate with or
merge into another corporation or other entity, or convey or transfer all or
substantially all of its properties and assets to any other corporation or
other entity.
6.02. Rights and Duties of Successor Corporation.
___________________________________________
In case of any such consolidation, merger, conveyance or transfer and upon any
assumption of the duties and obligations of the Company by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein, and the
Company shall be relieved of any further obligation under this Agreement and
the Debt Warrants. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any
or all of the Underlying Debt Securities issuable pursuant to the terms hereof.
All the Underlying Debt Securities so issued shall in all respects have the
same legal rank and benefit under the Indenture as the Underlying Debt
Securities theretofore or thereafter issued in accordance with the terms of
this Agreement and the Indenture.
<PAGE> 17
14
In case of any such consolidation, merger, conveyance or
transfer, such changes in phraseology and form (but not in substance) may be
made in the Underlying Debt Securities thereafter to be issued as may be
appropriate.
6.03. Supplements and Amendments.
___________________________
(a) The Company and the Debt Warrant Agent may from time to
time supplement or amend this Agreement without the approval of any
Holder in order to cure any ambiguity, to correct or supplement any
provision contained herein that may be defective or inconsistent with
any other provision herein, or to make any other provision in regard to
matters or questions arising hereunder that the Company and the Debt
Warrant Agent may deem necessary or desirable and that shall not
adversely affect the interests of the Holders. Every Holder of Debt
Warrants, whether issued before or after any such supplement or
amendment, shall be bound thereby. Promptly after the effectiveness of
any supplement or amendment that affects the interests of the Holders,
the Company shall give notice thereof, as provided in Section 5.03(d)
hereof, to the Holders affected thereby, setting forth in general terms
the substance of such supplement or amendment.
(b) The Company and the Debt Warrant Agent may modify or
amend this Agreement and the Debt Warrant Certificates with the consent
of the Holders of not fewer than a majority in number of the then
outstanding unexercised Debt Warrants affected by such modification or
amendment, for any purpose; provided, however, that no such
modification or amendment that shortens the period of time during which
the Debt Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Holders or reduces the
percentage of Holders of outstanding Debt Warrants the consent of which
is required for modification or amendment of this Agreement or the Debt
Warrants, may be made without the consent of each Holder affected
thereby.
6.04. Notices and Demands to the Company and Debt Warrant
___________________________________________________
Agent.
______
If the Debt Warrant Agent shall receive any notice or demand addressed
to the Company by a Holder pursuant to the provisions of this Agreement or a
Debt Warrant Certificate (other than notices relating to the exchange[,
transfer] or exercise of Debt Warrants), the Debt Warrant Agent shall promptly
forward such notice or demand to the Company.
6.05. Addresses.
__________
Any communications from the Company to the Debt Warrant Agent with respect to
this Agreement shall be directed to ____________________, Attention:
_______________, and any communications from the Debt Warrant Agent to the
Company with respect to this Agreement shall be directed to The Dial Corp, Dial
Tower, Phoenix, Arizona 85077, Attention: Treasurer, with a copy to the
Secretary (or such other address as shall be specified in writing by the Debt
Warrant Agent or by the Company).
<PAGE> 18
15
6.06. Applicable Law.
______________
This Agreement and the Debt Warrants shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
6.07. Delivery of Prospectus.
_______________________
The Company will furnish to the Debt Warrant Agent sufficient copies of a
prospectus or prospectuses relating to the Underlying Debt Securities
deliverable upon exercise of any outstanding Debt Warrants (each a
"Prospectus"), and the Debt Warrant Agent agrees to deliver to the Holder of
a Debt Warrant, prior to or concurrently with the delivery of the Underlying
Debt Securities issued upon the exercise thereof, a copy of the Prospectus
relating to such Underlying Debt Securities.
6.08. Obtaining Governmental Approvals.
_________________________________
The Company will take such action as may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities, and will make all filings under federal and state securities
laws (including, without limitation, the maintenance of the effectiveness of a
registration statement in respect of the Underlying Debt Securities under the
Securities Act of 1933), as may be or become requisite in connection with the
issuance, sale, transfer and delivery of Debt Warrants and Debt Warrant
Certificates, the exercise of Debt Warrants and the issuance, sale and
delivery of Underlying Debt Securities issued upon exercise of Debt Warrants.
6.09. Persons Having Rights Under Debt Warrant Agreement.
___________________________________________________
Nothing in this Agreement, expressed or implied, and nothing that may be
inferred from any of the provisions hereof is intended or shall be construed to
confer upon or give to any person or corporation other than the Company, the
Debt Warrant Agent and the Holders any right, remedy or claim under or by
reason of this Agreement or any covenant, condition, stipulation, promise or
agreement herein; and all covenants, conditions, stipulations, promises and
agreements herein shall be for the sole and exclusive benefit of the Company,
the Debt Warrant Agent and their respective successors and the Holders.
6.10. Headings.
_________
The descriptive headings of the several Articles and Sections of this
Agreement are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
6.11. Counterparts.
_____________
This Agreement may be executed in one or more counterparts and, when a
counterpart has been executed by each party hereto, all such counterparts
taken together shall constitute one and the same agreement.
<PAGE> 19
16
6.12. Inspection of Agreement.
________________________
A copy of this Agreement shall be available during business hours at the office
of the Debt Warrant Agent for inspection by any Holder. The Debt Warrant
Agent may require such Holder to submit its Debt Warrant Certificate for
inspection prior to making such copy available.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE DIAL CORP
[Seal]
By________________________________
Attest: Name:
Title:
__________________________________
Name:
Title:
__________________________________
[Seal]
Attest:
__________________________________ By________________________________
Name: Name:
Title: Title:
<PAGE> 20
Exhibit A
to
Debt Warrant Agreement
dated as of _______________, 19__
[Compensation of Debt Warrant Agent]
<PAGE> 1
S & S DRAFT
6/24/94
EXHIBIT 4.9(b)
OPTIONS REPRESENTED IN BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
_______________________________________________________________________________
COMMON STOCK WARRANT AGREEMENT
dated as of _______________, 19__
FOR
[UP TO _____] COMMON STOCK WARRANTS
EXPIRING _______________, 19__
between
THE DIAL CORP
and
[NAME OF COMMON STOCK WARRANT AGENT],
as Common Stock Warrant Agent
______________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS*
_________________
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
ARTICLE I
ISSUANCE OF COMMON STOCK WARRANTS AND EXECUTION AND
DELIVERY OF COMMON STOCK WARRANT CERTIFICATES
<TABLE>
<S> <C> <C>
SECTION 1.01. Issuance of Common Stock Warrants. . . . . . . . . . . . . . 1
SECTION 1.02. Form and Execution of Common Stock Warrant Certificates . . . 2
SECTION 1.03. Issuance and Delivery of Common Stock Warrant Certificates. . 3
SECTION 1.04. Temporary Common Stock Warrant Certificates . . . . . . . . . 3
SECTION 1.05. Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.06. "Holder". . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
DURATION AND EXERCISE OF COMMON STOCK WARRANTS
SECTION 2.01. Duration of Common Stock Warrants . . . . . . . . . . . . . . 5
SECTION 2.02. Exercise of Common Stock Warrants . . . . . . . . . . . . . . 5
SECTION 2.03. Common Stock Warrant Adjustments. . . . . . . . . . . . . . . 6
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF COMMON STOCK WARRANTS
SECTION 3.01. Holders of Common Stock Warrants May Enforce Rights . . . . . 7
SECTION 3.02. Merger, Consolidation, Sale, Transfer or Conveyance . . . . . 7
SECTION 3.03. Treatment of Holders of Common Stock
Warrant Certificates. . . . . . . . . . . . . . . . . . . . 8
</TABLE>
___________________________________
* The Table of Contents is not a part of the Common Stock Warrant Agreement.
<PAGE> 3
ARTICLE IV
EXCHANGE AND TRANSFER OF COMMON STOCK WARRANTS
<TABLE>
<S> <C> <C>
SECTION 4.01. Common Stock Warrant Register; Exchange and Transfer
of Common Stock Warrants. . . . . . . . . . . . . . . . . . 8
SECTION 4.02. Treatment of Holders of Common Stock Warrants . . . . . . . . 9
SECTION 4.03. Cancellation of Common Stock Warrant
Certificates. . . . . . . . . . . . . . . . . . . . . . . .10
ARTICLE V
CONCERNING THE COMMON STOCK WARRANT AGENT
SECTION 5.01. Common Stock Warrant Agent. . . . . . . . . . . . . . . . . .10
SECTION 5.02. Conditions of Common Stock Warrant Agent's Obligations. . . .10
SECTION 5.03. Compliance with Applicable Laws . . . . . . . . . . . . . . .13
SECTION 5.04. Resignation and Appointment of Successor. . . . . . . . . . .13
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 6.02. Notices and Demands to the Company
and Common Stock Warrant Agent. . . . . . . . . . . . . . .15
SECTION 6.03. Addresses for Notices . . . . . . . . . . . . . . . . . . . .15
SECTION 6.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 6.05. Governmental Approvals. . . . . . . . . . . . . . . . . . . .16
SECTION 6.06. Persons Having Rights Under Common
Stock Warrant Agreement . . . . . . . . . . . . . . . . . .16
SECTION 6.07. Delivery of Prospectus. . . . . . . . . . . . . . . . . . . .16
SECTION 6.08. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 6.09. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 6.10. Inspection of Agreement . . . . . . . . . . . . . . . . . . .16
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
(ii)
<PAGE> 4
This COMMON STOCK WARRANT AGREEMENT, dated as of
_______________, between The Dial Corp, a Delaware corporation (the "Company"),
and ____________________, a _______________ organized and existing under the
laws of __________, as warrant agent (the "Common Warrant Agent").
WHEREAS, the Company proposes to sell [title of
preferred stock, common stock or other securities being offered (the "Offered
Securities") with] certificates evidencing one or more warrants (the "Common
Stock Warrants" or, individually, a "Common Stock Warrant") representing the
right to purchase shares of the common stock, par value $1.50 per share, of the
Company (the "Common Stock"), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the "Common
Stock Warrant Certificates"; and
WHEREAS, the Company has duly authorized the
execution and delivery of this Common Stock Warrant Agreement to provide for
the issuance of Common Stock Warrants to be exercisable at such times and for
such prices, and to have such other provisions, as shall be fixed as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises and
of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF COMMON STOCK WARRANTS AND EXECUTION AND
DELIVERY OF COMMON STOCK WARRANT CERTIFICATES
SECTION 1.01. Issuance of Common Stock Warrants.
__________________________________
Common Stock Warrants may be issued, from time to time, together with or
separately from Offered Securities. Prior to the issuance of any Common Stock
Warrants, there shall be established by or pursuant to a resolution or
resolutions duly adopted by the Company's Board of Directors or by any
committee thereof duly authorized to act with respect thereto (a "Board
Resolution"):
(1) The title and aggregate number of such Common
Stock Warrants.
(2) The offering price of such Common Stock
Warrants.
(3) The number of shares of Common Stock that may
be purchased upon exercise of each such Common Stock
Warrant; the price, or the manner of determining the price
(the "Common Stock Warrant Price"), at which such shares of
Common Stock may be purchased upon exercise of the Common
Stock Warrants; if other than cash, the property and manner
in which the exercise price may be paid;
<PAGE> 5
2
and any minimum number of such Common Stock Warrants that
are exercisable at any one time.
(4) The time or times at which, or period or
periods during which, such Common Stock Warrants may be
exercised and the final date on which such Common Stock
Warrants may be exercised (the "Expiration Date").
(5) The terms of any right to redeem such Common
Stock Warrants.
(6) The terms of any right of the Company to
accelerate the Common Stock Warrants upon the occurence
of certain events.
(7) Whether such Common Stock Warrants are to be
issued with any other Offered Securities and, if so,
the number and terms of any such Offered Securities
and the number of Common Stock Warrants to be issued
with each Offered Security.
(8) The date, if any, on and after which the
Common Stock Warrants and the Offered Securities will be
separately transferable (the "Detachable Date").
(9) Any other terms of such Common Stock Warrants
not inconsistent with the provisions of this Agreement.
SECTION 1.02. Form and Execution of Common Stock
__________________________________
Warrant Certificates.
_____________________
(a) The Common Stock Warrants shall be evidenced
by warrant certificates (the "Common Stock Warrant Certificates"),
which shall be in registered form and substantially in such form or
forms as shall be established by or pursuant to a Board Resolution.
Each Common Stock Warrant Certificate, whenever issued, shall be dated
the date it is countersigned by the Common Stock Warrant Agent and may
have such letters, numbers or other marks of identification and such
legends or endorsements printed, lithographed or engraved thereon as
are not inconsistent with the provisions of this Agreement, or as may
be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities
exchange on which the Common Stock Warrants may be listed, or to
conform to usage, as the officer of the Company executing the same may
approve (his execution thereof to be conclusive evidence of such
approval). Each Common Stock Warrant Certificate shall evidence one or
more Common Stock Warrants.
(b) The Common Stock Warrant Certificates shall be
signed in the name and on behalf of the Company by its Chairman, its
President or a Vice President (any reference to a Vice President of the
Company herein shall be deemed to include any Vice President of the
Company whether or not designated by a number or a word or words added
before or after the title "Vice President") under its corporate seal,
and attested by its Secretary or an Assistant Secretary. Such
signatures may be manual or facsimile signatures
<PAGE> 6
3
of the present or any future holder of any such office and may
be imprinted or otherwise reproduced on the Common Stock Warrant
Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Common Stock Warrant Certificates.
(c) No Common Stock Warrant Certificate shall be valid for
any purpose, and no Common Stock Warrant evidenced thereby shall be
deemed issued or exercisable, until such Common Stock Warrant
Certificate has been countersigned by the manual or facsimile signature
of the Common Stock Warrant Agent. Such signature by the Common Stock
Warrant Agent upon any Common Stock Warrant Certificate executed by the
Company shall be conclusive evidence that the Common Stock Warrant
Certificate so countersigned has been duly issued hereunder.
(d) In case any officer of the Company who shall have
signed any Common Stock Warrant Certificate either manually or by
facsimile signature shall cease to be such officer before the Common
Stock Warrant Certificate so signed shall have been countersigned and
delivered by the Common Stock Warrant Agent, such Common Stock Warrant
Certificate nevertheless may be countersigned and delivered as though
the person who signed such Common Stock Warrant Certificate had not
ceased to be such officer of the Company; and any Common Stock Warrant
Certificate may be signed on behalf of the Company by such person as,
at the actual date of the execution of such Common Stock Warrant
Certificate, shall be the proper officer of the Company, although at
the date of the execution of this Agreement such person was not such an
officer.
SECTION 1.03. Issuance and Delivery of Common Stock
______________________________________
Warrant Certificates.
_____________________
At any time and from time to time after the execution and delivery of
this Agreement, the Company may deliver Common Stock Warrant
Certificates executed by the Company to the Common Stock Warrant Agent for
countersignature. Except as provided in the following sentence, the Common
Stock Warrant Agent shall thereupon countersign and deliver such Common Stock
Warrant Certificates to or upon the written request of the Company. Subsequent
to the original issuance of a Common Stock Warrant Certificate evidencing
Common Stock Warrants, the Common Stock Warrant Agent shall countersign a new
Common Stock Warrant Certificate evidencing such Common Stock Warrants only if
such Common Stock Warrant Certificate is issued in exchange or substitution for
one or more previously countersigned Common Stock Warrant Certificates
evidencing such Common Stock Warrants or in connection with their transfer, as
hereinafter provided.
SECTION 1.04. Temporary Common Stock Warrant Certificates.
____________________________________________
Pending the preparation of definitive Common Stock Warrant
Certificates, the Company may execute, and upon the order of the Company the
Common Stock Warrant Agent shall countersign and deliver, temporary Common
Stock Warrant Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced, substantially of the tenor of the
definitive
<PAGE> 7
4
Common Stock Warrant Certificates in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officer executing such Common Stock Warrant Certificates may determine, as
evidenced by his execution of such Common Stock Warrant Certificates.
If temporary Common Stock Warrant Certificates are
issued, the Company will cause definitive Common Stock Warrant Certificates to
be prepared without unreasonable delay. After the preparation of definitive
Common Stock Warrant Certificates, the temporary Common Stock Warrant
Certificates shall be exchangeable for definitive Common Stock Warrant
Certificates upon surrender of the temporary Common Stock Warrant Certificates
at the corporate trust office of the Common Stock Warrant Agent [or
___________], without charge to the Holder, as defined in Section 1.06 hereof.
Upon surrender for cancellation of any one or more temporary Common Stock
Warrant Certificates, the Company shall execute and the Common Stock Warrant
Agent shall countersign and deliver in exchange therefor definitive Common
Stock Warrant Certificates representing the same aggregate number of Common
Stock Warrants. Until so exchanged, the temporary Common Stock Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Common Stock Warrant Certificates.
SECTION 1.05. Payment of Taxes.
_________________
The Company will pay all stamp and other duties, if any, to which this
Agreement or the original issuance of the Common Stock Warrants or Common
Stock Warrant Certificates may be subject under the laws of the United States
of America or any state or locality.
SECTION 1.06. "Holder".
_________
The term "Holder" or "Holders", as used herein with reference to a Common Stock
Warrant Certificate, shall mean the person or persons in whose name such Common
Stock Warrant Certificate shall then be registered as set forth in the Common
Stock Warrant Register to be maintained by the Common Stock Warrant Agent
pursuant to Section 4.01 for that purpose or, in the case of Common Stock
Warrants that are issued with Offered Securities and cannot then be
transferred separately therefrom, [if registered Offered Securities
and Common Stock Warrants that are not then detachable -- the person or
persons in whose name the related Offered Securities shall be registered as
set forth in the security register for such Offered Securities, prior to the
Detachable Date.] [If registered Offered Securities and Common Stock Warrants
that are not then detachable -- the Company will, or will cause the security
registrar of any such Offered Securities to, make available to the Common
Stock Warrant Agent at all times (including on and after the Detachable Date,
in the case of Common Stock Warrants originally issued with Offered Securities
and not subsequently transferred separately therefrom) such information as to
holders of Offered Securities with Common Stock Warrants as may be necessary
to keep the Common Stock Warrant Register up to date.]
<PAGE> 8
5
ARTICLE II
DURATION AND EXERCISE OF COMMON STOCK WARRANTS
SECTION 2.01. Duration of Common Stock Warrants.
__________________________________
Each Common Stock Warrant may be exercised at the time or times, or during the
period or periods, provided by or pursuant to the Board Resolution relating
thereto and specified in the Common Stock Warrant Certificate evidencing such
Common Stock Warrant. Each Common Stock Warrant not exercised at or before
5:00 P.M., New York City time, on its Expiration Date shall become void, and
all rights of the Holder of such Common Stock Warrant thereunder and under this
Agreement shall cease, provided that the Company reserves the right to, and
may, in its sole discretion, at any time and from time to time, at such time or
times as the Company so determines, extend the expiration date of the Common
Stock Warrants for such periods of time as it chooses; further provided that in
no case may the expiration date of the Common Stock Warrants (as extended) be
extended beyond five years from the expiration date set forth above. Whenever
the expiration date of the Common Stock Warrants is so extended, the Company
shall, at least 20 days prior to the then expiration date, cause to be mailed to
the Common Stock Warrant Agent and the registered Holders of the Common Stock
Warrants in accordance with the provisions of Section 5.03 hereof a notice
stating that the expiration date has been extended and setting forth the new
expiration date. No adjustment shall be made for any dividends on any Common
Stock issuable upon exercise of any Common Stock Warrant.
SECTION 2.02. Exercise of Common Stock Warrants.
__________________________________
(a) The Holder of a Common Stock Warrant shall have the right,
at its option, to exercise such Common Stock Warrant and, subject to
subsection (e) of this Section 2.02, purchase the number of shares of
Common Stock provided for therein at the time or times or during the
period or periods referred to in Section 2.01 and specified in the
Common Stock Warrant Certificate evidencing such Common Stock Warrant.
No fewer than the minimum number of Common Stock Warrants as set forth
in the Common Stock Warrant Certificate may be exercised by or on
behalf of any one Holder at any one time. Except as may be provided in
a Common Stock Warrant Certificate, a Common Stock Warrant may be
exercised by completing the form of election to purchase set forth on
the reverse side of the Common Stock Warrant Certificate, by duly
executing the same, and by delivering the same, together with payment
in full of the Common Stock Warrant Price, in lawful money of the
United States of America, in cash or by certified or official bank
check or by bank wire transfer, to the Common Stock Warrant Agent.
Except as may be provided in a Common Stock Warrant Certificate, the
date on which such Common Stock Warrant Certificate and payment are
received by the Common Stock Warrant Agent as aforesaid shall be deemed
to be the date on which the Common Stock Warrant is exercised and the
relevant shares of Common Stock are issued.
<PAGE> 9
6
(b) Upon the exercise of a Common Stock Warrant, the
Company shall issue, to or upon the order of the Holder of such Common
Stock Warrant, the shares of Common Stock to which such Holder is
entitled, registered, in the case of shares of Common Stock in
registered form, in such name or names as may be directed by such
Holder.
(c) The Common Stock Warrant Agent shall deposit all funds
received by it in payment of the Common Stock Warrant Price for Common
Stock Warrants in the account of the Company maintained with it for
such purpose and shall advise the Company by telephone by 5:00 P.M.,
New York City time, of each day on which a payment of the Common Stock
Warrant Price for Common Stock Warrants is received of the amount so
deposited in its account. The Common Stock Warrant Agent shall promptly
confirm such telephone advice in writing to the Company.
(d) The Common Stock Warrant Agent shall, from time to
time, as promptly as practicable, advise the Company of (i) the number
of Common Stock Warrants of each title exercised as provided herein,
(ii) the instructions of each Holder of such Common Stock Warrants with
respect to delivery of the Common Stock issued upon exercise of such
Common Stock Warrants to which such Holder is entitled upon such
exercise, and (iii) such other information as the Company or such
Trustee shall reasonably require. Such notice may be given by
telephone to be promptly confirmed in writing.
(e) The Company will pay all documentary stamp taxes
attributable to the initial issuance of Common Stock Warrants;
provided, however, that the Holder, and not the Company, shall be
required to pay any stamp or other tax or other governmental charge
that may be imposed in connection with any transfer involved in the
issuance of the Common Stock; and in the event that any such transfer
is involved, the Company shall not be required to issue any Common
Stock (and the Holder's purchase of the shares of Common Stock issued
upon the exercise of such Holder's Common Stock Warrant shall not be
deemed to have been consummated) until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
SECTION 2.03. Common Stock Warrant Adjustments.
_________________________________
The terms and conditions, if any, on which the exercise price of and/or the
number of shares of Common Stock covered by a Common Stock Warrant are subject
to adjustments will be set forth in the Prospectus Supplement relating thereto.
Such terms will include the adjustment mechanism for the exercise price of, and
the number of shares of Common Stock covered by, a Common Stock Warrant, the
events requiring such adjustments, the events upon which the Company may, in
lieu of making such adjustments, make proper provisions so that the Holder,
upon exercise of such Holder's Common Stock Warrant, would be treated as if
such Holder had been a holder of the Common Stock received upon such exercise,
prior to the occurrence of such events, and provisions affecting exercise of
the Common Stock Warrants in the event of certain events affecting the Common
Stock.
<PAGE> 10
7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF COMMON STOCK WARRANTS
SECTION 3.01. Holders of Common Stock Warrants May Enforce
____________________________________________
Rights.
_______
Notwithstanding any of the provisions of this Agreement, any Holder
may, without the consent of the Common Stock Warrant Agent, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise his
Common Stock Warrants as provided in the Common Stock Warrants and in this
Agreement.
SECTION 3.02. Merger, Consolidation, Sale, Transfer
_____________________________________
or Conveyance.
______________
(a) In case any of the following shall occur while any Common
Stock Warrants are outstanding: (i) any reclassification or change of
the outstanding shares of Common Stock; or (ii) any consolidation or
merger to which the Company is party (other than a consolidation or a
merger in which the Company is the continuing corporation and which
does not result in any reclassification of, or change in, the
outstanding shares of Common Stock issuable upon exercise of the Common
Stock Warrants); or (iii) any sale, conveyance or lease to another
corporation of the property of the Company as an entirety or
substantially as an entirety; then the Company, or such successor or
purchasing corporation, as the case may be, shall make appropriate
provision by amendment of this Agreement or otherwise so that the
Holders of the Common Stock Warrants then outstanding shall have the
right at any time thereafter, upon exercise of such Common Stock
Warrants, to purchase the kind and amount of shares of stock and other
securities and property receivable upon such a reclassification,
change, consolidation, merger, sale, conveyance or lease as would be
received by a holder of the number of shares of Common Stock issuable
upon exercise of such Common Stock Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or
lease, and, in the case of a consolidation, merger, sale, conveyance or
lease, the Company shall thereupon be relieved of any further
obligation hereunder or under the Common Stock Warrants, and the
Company as the predecessor corporation may thereupon or at any time
thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Common Stock Warrants issuable hereunder which theretofore shall not
have been signed by the Company, and may execute and deliver Common
Stock in its own name, in fulfillment of its obligations to deliver
Common Stock upon exercise of the Common Stock Warrants. All the
Common Stock Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Common Stock
Warrants theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Common Stock Warrants had been
issued at the date of the
<PAGE> 11
8
execution hereof. In any case of any such reclassification,
change, consolidation, merger, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance) may be made in
the Common Stock Warrants thereafter to be issued as may be
appropriate.
(b) The Common Stock Warrant Agent may receive a written
opinion of legal counsel as conclusive evidence that any such merger,
consolidation, sale, transfer, conveyance or other disposition of
substantially all of the assets of the Company complies with the
provisions of this Section 3.02.
SECTION 3.03. Treatment of Holders of Common Stock Warrant
____________________________________________
Certificates.
_____________
(A) In the event that the Common Stock Warrants are
offered together with, and, prior to the Detachable Date, are not
detachable to, Offered Securities, the Company, the Common Stock
Warrant Agent and all other persons may, prior to such Detachable Date,
treat the holder of the Offered Security as the Holder of the Common
Stock Warrant Certificates initially attached thereto for any purpose
and as the person entitled to exercise the rights represented by the
Common Stock Warrants evidenced by such Common Stock Warrant
Certificates, any notice to the contrary notwithstanding. After the
Detachable Date and prior to due presentment of a Common Stock Warrant
Certificate for registration of transfer, the Company and the Common
Stock Warrant Agent may treat the registered Holder of a Common Stock
Warrant Certificate as the absolute Holder thereof for any purpose and
as the person entitled to exercise the rights represented by the Common
Stock Warrants evidenced thereby, any notice to the contrary
notwithstanding.
(B) In all other cases, the Company and the Common
Stock Warrant Agent may treat the registered Holder of a Common Stock
Warrant Certificate as the absolute Holder thereof for any purpose and
as the person entitled to exercise the rights represented by the Common
Stock Warrants evidenced thereby, any notice to the contrary
notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF COMMON STOCK WARRANTS
SECTION 4.01. Common Stock Warrant Register;
______________________________
Exchange and Transfer of Common Stock Warrants.
_______________________________________________
The Common Stock Warrant Agent shall maintain, at its corporate trust office
[or at __________], a register (the "Common Stock Warrant Register") in which,
upon the issuance of Common Stock Warrants, or on and after the Detachable
Date in the case of Common Stock Warrants not separately transferable prior
thereto, and, subject to such reasonable regulations as the Common Stock
Warrant Agent may prescribe, it shall register Common Stock Warrant
Certificates and exchanges and transfers thereof. The
<PAGE> 12
9
Common Stock Warrant Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time.
Except as provided in the following sentence, upon
surrender at the corporate trust office of the Common Stock Warrant Agent [or
at ____________], Common Stock Warrant Certificates may be exchanged for one or
more other Common Stock Warrant Certificates evidencing the same aggregate
number of Common Stock Warrants of the same title, or may be transferred in
whole or in part. A Common Stock Warrant Certificate evidencing Common Stock
Warrants that are not then transferable separately from the Offered Security
with which they were issued may be exchanged or transferred prior to its
Detachable Date only together with such Offered Security and only for the
purpose of effecting, or in conjunction with, an exchange or transfer of such
Offered Security; and on or prior to the Detachable Date, each exchange or
transfer of such Offered Security on the Security Register of the Offered
Securities shall operate also to exchange or transfer the related Common Stock
Warrants. A transfer shall be registered upon surrender of a Common Stock
Warrant Certificate to the Common Stock Warrant Agent at its corporate trust
office [or at ___________] for transfer, properly endorsed or accompanied by
appropriate instruments of transfer and written instructions for transfer, all
in form satisfactory to the Company and the Common Stock Warrant Agent.
Whenever a Common Stock Warrant Certificate is surrendered for exchange or
transfer, the Common Stock Warrant Agent shall countersign and deliver to the
person or persons entitled thereto one or more Common Stock Warrant
Certificates duly executed by the Company, as so requested. The Common Stock
Warrant Agent shall not be required to effect any exchange or transfer which
will result in the issuance of a Common Stock Warrant Certificate evidencing a
fraction of a Common Stock Warrant. All Common Stock Warrant Certificates
issued upon any exchange or transfer of a Common Stock Warrant Certificate
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Common Stock
Warrant Certificate surrendered for such exchange or transfer.
No service charge shall be made for any exchange or
transfer of Common Stock Warrants, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such exchange or transfer, in accordance with Section
2.02(f) hereof.
SECTION 4.02. Treatment of Holders of Common Stock
____________________________________
Warrants.
_________
Every Holder of a Common Stock Warrant, by accepting the Common
Stock Warrant Certificate evidencing the same, consents and agrees with the
Company, the Common Stock Warrant Agent and with every other Holder of Common
Stock Warrants of the same title that the Company and the Common Stock Warrant
Agent may treat the Holder of a Common Stock Warrant Certificate (or, if the
Common Stock Warrant Certificate is not then detachable, the Holder of the
related Offered Security) as the absolute owner of such Common Stock
<PAGE> 13
10
Warrant for all purposes and as the person entitled to exercise the rights
represented by such Common Stock Warrant, any notice to the contrary
notwithstanding.
SECTION 4.03. Cancellation of Common Stock Warrant
____________________________________
Certificates.
_____________
In the event that the Company shall purchase, redeem or otherwise acquire any
Common Stock Warrants after the issuance thereof, the Common Stock Warrant
Certificate or Certificates evidencing such Common Stock
Warrants shall thereupon be delivered to the Common Stock Warrant Agent and be
cancelled by it. The Common Stock Warrant Agent shall also cancel any Common
Stock Warrant Certificate (including any mutilated Common Stock Warrant
Certificate) delivered to it for exercise, in whole or in part, or for exchange
or transfer. Common Stock Warrant Certificates so cancelled shall be delivered
by the Common Stock Warrant Agent to the Company from time to time, or disposed
of in accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE COMMON STOCK WARRANT AGENT
SECTION 5.01. Common Stock Warrant Agent.
___________________________
The Company hereby appoints ____________________ as Common Stock Warrant Agent
of the Company in respect of the Common Stock Warrants upon the terms and
subject to the conditions set forth herein; and ________________ hereby accepts
such appointment. The Common Stock Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Common Stock Warrant
Certificates and hereby and such further powers and authority acceptable to it
to act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Common Stock Warrant Certificates are subject to and
governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Common Stock Warrant
__________________________________
Agent's Obligations.
____________________
The Common Stock Warrant Agent accepts its obligations set forth herein upon
the terms and conditions hereof, including the following, to all of which the
Company agrees and to all of which the rights hereunder of the Holders shall
be subject:
(a) Compensation and Indemnification.
_________________________________
The Company agrees to promptly pay the Common Stock Warrant Agent the
compensation set forth in Exhibit A hereto and to reimburse the
Common Stock Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Common Stock Warrant Agent
in connection with the services rendered hereunder by the Common
Stock Warrant Agent. The Company also agrees to indemnify the Common
Stock Warrant Agent for, and to hold it harmless against, any loss,
liability or expense (including the
<PAGE> 14
11
reasonable costs and expenses of defending against
any claim of liability) incurred without negligence
or bad faith on the part of the Common Stock Warrant
Agent arising out of or in connection with its
appointment as Common Stock Warrant Agent hereunder.
(b) Agent for the Company.
______________________
In acting under this Agreement and in connection with
any Common Stock Warrant Certificate, the Common
Stock Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or
relationship of agency or trust for or with any
Holder.
(c) Counsel.
________
The Common Stock Warrant Agent may consult
with counsel satisfactory to it, and the
advice of such counsel shall be full and
complete authorization and protection in respect of
any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the
advice of such counsel.
(d) Documents.
__________
The Common Stock Warrant Agent shall be
protected and shall incur no liability
for or in respect of any action taken,
suffered or omitted by it in reliance upon any
notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably
believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Officer's Certificate.
______________________
Whenever in the performance of its duties hereunder
the Common Stock Warrant Agent shall reasonably
deem it necessary that any fact or matter be proved
or established by the Company prior to taking,
suffering or omitting any action hereunder, the
Common Stock Warrant Agent may (unless other
evidence in respect thereof be herein specifically
prescribed), in the absence of bad faith on its
part, rely upon a certificate signed by the
Chairman, the President, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company (an "Officer's
Certificate") delivered by the Company to the Common
Stock Warrant Agent.
(f) Actions Through Agents.
_______________________
The Common Stock Warrant Agent may execute and
exercise any of the rights or powers hereby vested
in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the
Common Stock Warrant Agent shall not be answerable
or accountable for any act, default, neglect or
misconduct of any such attorney or agent or for any
loss to the Company resulting from such neglect or
misconduct; provided, however, that reasonable care
shall have been exercised in the selection and
continued employment of such attorneys and agents.
(g) Certain Transactions.
_____________________
The Common Stock Warrant Agent, and any officer,
director or employee thereof, may become the owner
of, or acquire any
<PAGE> 15
12
interest in, any Common Stock Warrant, with the same
rights that he, she or it would have if it were not
the Common Stock Warrant Agent, and, to the extent
permitted by applicable law, he, she or it may
engage or be interested in any financial or other
transaction with the Company and may serve on, or as
depositary, trustee or agent for, any committee or
body of holders of Underlying Debt Securities or
other obligations of the Company as if it were not
the Common Stock Warrant Agent.
(h) No Liability for Interest.
__________________________
The Common Stock Warrant Agent shall not be liable
for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement
or of the Common Stock Warrant Certificates, except
as otherwise agreed with the Company.
(i) No Liability for Invalidity.
____________________________
The Common Stock Warrant Agent shall incur no
liability with respect to the validity of this
Agreement (except as to the due execution hereof by
the Common Stock Warrant Agent) or any Common Stock
Warrant Certificate (except as to the
countersignature thereof by the Common Stock
Warrant Agent).
(j) No Responsibility for Company
_____________________________
Representations.
________________
The Common Stock Warrant Agent shall not be
responsible for any of the recitals or
representations contained herein (except as to such
statements or recitals as describe the Common Stock
Warrant Agent or action taken or to be taken by it)
or in any Common Stock Warrant Certificate (except
as to the Common Stock Warrant Agent's
countersignature on such Common Stock Warrant
Certificate), all of which recitals and
representations are made solely by the Company.
(k) No Implied Obligations.
_______________________
The Common Stock Warrant Agent shall be obligated
to perform only such duties as are specifically set
forth herein, and no other duties or
obligations shall be implied. The Common
Stock Warrant Agent shall not be under
any obligation to take any action hereunder
that may subject it to any expense or liability, the
payment of which within a reasonable time is not, in
its reasonable opinion, assured to it. The Common
Stock Warrant Agent shall not be accountable or
under any duty or responsibility for the use by the
Company of any Common Stock Warrant Certificate
countersigned by the Common Stock Warrant Agent and
delivered by it to the Company pursuant to this
Agreement or for the application by the Company of
the proceeds of the issuance or exercise of Common
Stock Warrants. The Common Stock Warrant Agent
shall have no duty or responsibility in case of any
default by the Company in the performance of its
covenants or agreements contained herein or in any
Common Stock Warrant Certificate or in case of the
receipt of any written demand from a Holder with
respect to such default, including, without limiting
the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate
any proceedings at law or otherwise
<PAGE> 16
13
or, except as provided in Section 6.04 hereof, to
make any demand upon the Company.
SECTION 5.03. Compliance with Applicable Laws.
________________________________
The Common Stock Warrant Agent agrees to comply with all applicable federal and
state laws imposing obligations on it in respect of the services rendered by it
under this Common Stock Warrant Agreement and in connection with the Common
Stock Warrants, including (but not limited to) the provisions of United States
federal income tax laws regarding information reporting and backup withholding.
The Common Stock Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for failure to comply with any applicable provisions
of United States federal income tax laws regarding information reporting and
backup withholding.
SECTION 5.04. Resignation and Appointment of Successor.
________________________________________
(a) The Company agrees, for the benefit of the Holders of the
Common Stock Warrants, that there shall at all times be a Common
Stock Warrant Agent hereunder until all the Common Stock Warrants
are no longer exercisable.
(b) The Common Stock Warrant Agent may at any time resign as
such agent by giving written notice to the Company of such
intention on its part, specifying the date on which its desired
resignation shall become effective, subject to the appointment of
a successor Common Stock Warrant Agent and acceptance of such
appointment by such successor Common Stock Warrant Agent, as
hereinafter provided. The Common Stock Warrant Agent hereunder
may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying
such removal and the date when it shall become effective. Such
resignation or removal shall take effect upon the appointment
by the Company, as hereinafter provided, of a successor Common
Stock Warrant Agent (which shall be a banking institution
organized under the laws of the United States of America, or one
of the states thereof and having an office or an agent's office
south of Chambers Street in the Borough of Manhattan, The City of
New York) and the acceptance of such appointment by such successor
Common Stock Warrant Agent. In the event a successor Common Stock
Warrant Agent has not been appointed and has not accepted its
duties within 90 days of the Common Stock Warrant Agent's notice of
resignation, the Common Stock Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Common
Stock Warrant Agent. The obligation of the Company under
Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Common Stock
Warrant Agent.
(c) In case at any time the Common Stock Warrant Agent
shall resign, or shall be removed, or shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or make an
assignment for the benefit of its creditors or consent to the
appointment of a receiver or custodian of all or any substantial part
of its property, or shall
<PAGE> 17
14
admit in writing its inability to pay or meet its debts as they
mature, or if a receiver or custodian of it or all or any substantial
part of its property shall be appointed, or if any public officer
shall have taken charge or control of the Common Stock Warrant Agent
or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Common Stock Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Common Stock Warrant
Agent. Upon the appointment as aforesaid of a successor Common Stock
Warrant Agent and acceptance by the latter of such appointment, the
Common Stock Warrant Agent so superseded shall cease to be Common
Stock Warrant Agent hereunder.
(d) Any successor Common Stock Warrant Agent appointed
hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Common Stock
Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like
effect as if originally named as Common Stock Warrant Agent
hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Common Stock
Warrant Agent shall be entitled to receive all moneys, securities
and other property on deposit with or held by such predecessor, as
Common Stock Warrant Agent hereunder.
(e) Any corporation into which the Common Stock Warrant
Agent hereunder may be merged or converted or any corporation
with which the Common Stock Warrant Agent may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which the Common Stock Warrant Agent shall be a
party, or any corporation to which the Common Stock Warrant Agent
shall sell or otherwise transfer all or substantially all of the
assets and business of the Common Stock Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Common
Stock Warrant Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment.
__________
(a) This Agreement and the Common Stock Warrants may be
amended by the Company and the Common Stock Warrant Agent,
without the consent of the Holders of Common Stock Warrants, for the
purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained
herein or therein or in any other manner which the Company may deem
to be
<PAGE> 18
15
necessary or desirable and which will not materially and
adversely affect the interests of the Holders of the Common Stock
Warrants.
(b) The Company and the Common Stock Warrant Agent may modify
or amend this Agreement and the Common Stock Warrant Certificates
with the consent of the Holders of not fewer than a majority in
number of the then outstanding unexercised Common Stock Warrants
affected by such modification or amendment, for any purpose;
provided, however, that no such modification or amendment that
shortens the period of time during which the Common Stock Warrants
may be exercised, or otherwise materially and adversely affects the
exercise rights of the Holders or reduces the percentage of Holders
of outstanding Common Stock Warrants the consent of which is
required for modification or amendment of this Agreement or the
Common Stock Warrants, may be made without the consent of each
Holder affected thereby.
SECTION 6.02. Notices and Demands to the Corporation and
__________________________________________
Common Stock Warrant Agent.
___________________________
If the Common Stock Warrant Agent shall receive any notice or demand
addressed to the Company by any Holder pursuant to the
provisions of the Common Stock Warrant Certificates, the Common Stock Warrant
Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses for Notices.
______________________
Any communications from the Company to the Common Stock Warrant Agent with
respect to this Agreement shall be addressed to [name of Common Stock Warrant
Agent], [_____________, New York, New York ______], Attention:
[Corporate Trust Department]; any communications from the Common
Stock Warrant Agent to the Company with respect to this Agreement shall
be addressed to THE DIAL CORP, Dial Tower, Phoenix, Arizona 85077,
Attention: Treasurer (with a copy to the Secretary); or such other
addresses as shall be specified in writing by the Common Stock Warrant
Agent or by the Company.
SECTION 6.04. Governing Law.
______________
This Agreement and the Common Stock Warrants shall be governed by the
laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
SECTION 6.05. Governmental Approvals.
_______________________
The Company will from time to time use all reasonable efforts to obtain and
keep effective any and all permits, consents and approvals of
governmental agencies and authorities and the national securities
exchange on which the Common Stock Warrants may be listed or authorized
for trading from time to time and filings under the United States federal
and state laws, which may be or become requisite in connection with the
issuance, sale, trading, transfer or delivery of the Common Stock Warrants,
and the exercise of the Common Stock Warrants.
<PAGE> 19
16
SECTION 6.06. Persons Having Rights Under Common
__________________________________
Stock Warrant Agreement.
________________________
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall
be construed, to confer upon, or give to, any person or corporation other
than the Company, the Common Stock Warrant Agent and the Holders any right,
remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all covenants,
conditions, stipulations, promises and agreements in this Agreement contained
shall be for the sole and exclusive benefit of the Company and the Common Stock
Warrant Agent and their successors and of the Holders of Common Stock Warrant
Certificates.
SECTION 6.07. Delivery of Prospectus.
_______________________
The Company will furnish to the Common Stock Warrant Agent sufficient
copies of a prospectus or prospectuses relating to the Common Stock
deliverable upon exercise of any outstanding Common Stock Warrants
(each, a "Prospectus"), and the Common Stock Warrant, prior to or
concurrently with the delivery of the Common Stock issued upon the
exercise thereof, a copy of the Prospectus relating to such Common Stock.
SECTION 6.08. Headings.
_________
The descriptive headings of the several Articles and Sections and the
Table of Contents of this Agreement are for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. Counterparts.
_____________
This Agreement may be executed by the parties hereto in any number of
counterparts, each of which when so executed and delivered shall be
deemed to be an original; but all such counterparts shall together
constitute but one and the same instrument.
SECTION 6.10. Inspection of Agreement.
________________________
A copy of this Agreement shall be available at all reasonable times at the
principal corporate trust office of the Common Stock Warrant Agent, for
inspection by the Holders of Common Stock Warrants.
<PAGE> 20
17
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE DIAL CORP
[Seal]
By________________________
Attest: Name:
Title:
______________________________________________
Name:
Title:
__________________________
[Seal]
Attest:
_______________________________________________ By________________________
Name: Name:
Title: Title:
<PAGE> 21
Exhibit A
to
Common Stock Warrant Agreement
dated as of ___________, 19__
[Compensation of Common Stock Warrant Agent]
<PAGE> 1
S & S DRAFT
6/24/94
EXHIBIT 4.10
______________________________________________________________________________
___________________________________
DEPOSIT AGREEMENT
___________________________________
Dated as of________________________, 19____
among
THE DIAL CORP
and
[NAME OF DEPOSITARY], as Depositary
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_______________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
</TABLE>
ARTICLE I
DEFINITIONS
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 1.01. "Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. "Certificate of Designations" . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.03. "Certificate of Incorporation". . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.04. "Common Stock". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.05. "Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.06. "Corporate Office". . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.07. "Deposit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.08. "Depositary". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.09. "Depositary Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.10. "Holder". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.11. "Preferred Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.12. "Receipt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.13. "Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.14. "Securities Act". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. . . . . . . . . . . . . . . . . . . 3
SECTION 2.02. Deposit of Preferred Stock; Execution and
Delivery of Receipts in Respect Thereof . . . . . . . . . . . . . 4
SECTION 2.03. Optional Redemption of Preferred Stock. . . . . . . . . . . . . . . . . . 5
SECTION 2.04. Transfers of Receipts.. . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.05. Combinations and Split-ups of Receipts. . . . . . . . . . . . . . . . . . 7
SECTION 2.06. Surrender of Receipts and Withdrawal of Preferred Stock . . . . . . . . . 7
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts. . . . . . . . . . 8
SECTION 2.08. Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts. . . . . . . . . . . 9
SECTION 2.10. Conversion or Exchange of Preferred Stock into Common
Stock or Other Securities. . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
<PAGE> 3
ii
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
<TABLE>
<S> <C> <C>
SECTION 3.01. Filing Proofs, Certificates and Other Information . . . . . . . . . . . . 13
SECTION 3.02. Payment of Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.03. Representations and Warranties as to Preferred Stock. . . . . . . . . . . 13
SECTION 3.04. Representation and Warranty as to Receipts. . . . . . . . . . . . . . . . 14
SECTION 3.05. Covenants and Representation and Warranty as to Common Stock. . . . . . . 14
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.02. Distributions Other than Cash . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.03. Subscription Rights, Preferences or Privileges. . . . . . . . . . . . . . 15
SECTION 4.04. Notice of Dividends; Fixing of Record Date for
Holders of Receipts. . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.05. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.06. Changes Affecting Preferred Stock and
Reclassifications, Recapitalizations, etc. . . . . . . . . . . . . 17
SECTION 4.07. Inspection of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.08. Lists of Receipt Holders. . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.09. Tax and Regulatory Compliance . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.10. Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary and the Registrar . . . . . . . . 18
SECTION 5.02. Prevention or Delay in Performance by the Depositary,
Any Agent, the Registrar or the Company. . . . . . . . . . . . . . 19
SECTION 5.03. Obligations of the Depositary, Any Agent,
the Registrar and the Company. . . . . . . . . . . . . . . . . . . 19
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. . . . . . . . . . . . . . . . 21
SECTION 5.05. Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.06. Indemnification by the Company. . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5.07. Fees, Charges and Expenses. . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
<PAGE> 4
iii
ARTICLE VI
AMENDMENT AND TERMINATION
<TABLE>
<S> <C> <C>
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.02. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.02. Exclusive Benefits of Parties . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.03. Invalidity of Provisions. . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.04. Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.05. Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.06. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.07. Inspection of Deposit Agreement and Certificate of
Designations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.08. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
</TABLE>
<TABLE>
<S> <C>
EXHIBIT A Form of Receipt
</TABLE>
<PAGE> 5
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________________________, 19___,
among THE DIAL CORP, a Delaware corporation, [NAME OF BANK], [_____________],
as Depositary, and all Holders from time to time of the Receipts issued
hereunder (as hereinafter defined).
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit by the Company of shares of the
Company's Preferred Stock (as hereinafter defined) with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts evidencing Depositary Shares representing an interest in the
Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
SECTION 1.01. "Agent" shall mean any agent of the Depositary
appointed by the Depositary from time to time to act in any respect for the
Depositary for purposes of this Deposit Agreement and the appointment of which
may be modified or terminated by the Depositary. The Depositary will notify
the Company of any such action.
SECTION 1.02. "Certificate of Designations" shall mean the
Certificate of Designations filed with the Secretary of State of the State of
Delaware establishing the Preferred Stock as a series of Preferred Stock.
SECTION 1.03. "Certificate of Incorporation" shall mean the
Certificate of Incorporation, as amended and/or restated from time to time, of
the Company.
SECTION 1.04. "Common Stock" shall mean shares of the Company's
common stock, $1.50 par value per share.
<PAGE> 6
2
SECTION 1.05. "Company" shall mean THE DIAL CORP, a Delaware
corporation, and its successors.
SECTION 1.06. "Corporate Office" shall mean the corporate
office of the Depositary in the Borough of Manhattan, The City of New York, at
which at any particular time its business in respect of matters governed by
this Deposit Agreement shall be administered, which at the date of this Deposit
Agreement is located at , New York, New York .
SECTION 1.07. "Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.08. "Depositary" shall mean [NAME OF BANK], a company
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000, and any successor as depositary hereunder.
SECTION 1.09. "Depositary Share" shall mean an interest in one
[SPECIFY FRACTION] of a share of Preferred Stock deposited by the Company with
the Depositary hereunder and the same proportionate interest in any and all
other property received by the Depositary in respect of such share of Preferred
Stock and held under this Deposit Agreement, all as evidenced by the Receipts
issued hereunder. Subject to the terms of this Deposit Agreement, each owner
of a Depositary Share is entitled, proportionately, to all the rights,
preferences and privileges of the Preferred Stock represented by such
Depositary Share, including any and all dividend, voting, redemption,
conversion, exchange and liquidation rights provided for in the Certificate of
Designations.
SECTION 1.10. "Holder", as applied to a Receipt, shall mean the
person in whose name an outstanding Receipt is registered on the books
maintained by the Depositary for such purpose, and such person's successors.
SECTION 1.11. "Preferred Stock" shall mean shares of the
Company's Preferred Stock[, Series ], as specified in the Certificate
of Designations, $0.01 par value per share.
SECTION 1.12. "Receipt" shall mean a depositary receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
SECTION 1.13. "Registrar" shall mean any bank or trust company
appointed to register ownership and transfers of Receipts as herein provided.
SECTION 1.14 "Securities Act" shall mean the Securities Act of
1933, as amended.
<PAGE> 7
3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
_____________________________________
Definitive Receipts shall be engraved, printed or lithographed, with steel-
engraved borders and underlying tint, and shall be substantially in the form
set forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the
written order of the Company, delivered in compliance with Section 2.02,
shall execute and deliver temporary Receipts, which may be printed,
lithographed, typewritten, reproduced or otherwise, substantially of the
tenor of the definitive Receipts in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and
other variations as the persons executing such Receipts may determine,
as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the Corporate
Office or such other office or offices, if any, as the Depositary may
designate, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of
Depositary Shares represented by the surrendered temporary Receipt or Receipts.
Such exchange shall be made at the Company's expense and without any charge
therefor. Until so exchanged, the temporary Receipts shall in all respects be
entitled to the same benefits under this Agreement, and with respect to the
Preferred Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary, provided that such
signature may be a facsimile if a Registrar (other than the Depositary) shall
have countersigned the Receipts by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed as provided in the preceding sentence. The Depositary
shall record on its books each Receipt executed as provided above and delivered
as hereinafter provided.
<PAGE> 8
4
Except as the Depositary may otherwise determine, Receipts shall
be in denominations of any number of whole Depositary Shares. All Receipts
shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the Preferred Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that until a Receipt shall be transferred on the books of the Depositary as
provided in Section 2.04, the Depositary may, notwithstanding any notice to the
contrary, treat the Holder thereof at such time as the absolute owner thereof
for the purpose of determining the person entitled to receive dividends and
other distributions and notices provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and
_________________________________________
Delivery of Receipts in Respect Thereof.
________________________________________
Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit Preferred Stock under
this Deposit Agreement by delivery to the Depositary of a certificate
or certificates for the Preferred Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with (i) all such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit Agreement and (ii) a written
order of the Company directing the Depositary to execute and deliver to or upon
the written order of the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited
Preferred Stock.
Upon receipt by the Depositary of a certificate or certificates
for Preferred Stock to be deposited hereunder, together with the other
documents specified above, the Depositary shall, as soon as transfer and
registration can be accomplished, present such certificate or certificates to
the registrar and transfer agent of the Preferred Stock for transfer and
registration in the name of the Depositary or its nominee of the Preferred
Stock being deposited. Deposited Preferred Stock shall be held by the
Depositary in an account to be established by the Depositary at the Corporate
Office or at such other office as the Depositary shall determine.
<PAGE> 9
5
Upon receipt by the Depositary of a certificate or certificates
for Preferred Stock to be deposited hereunder, together with the other
documents specified above, and upon registration of the Preferred Stock on the
books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section 2.02, a Receipt or Receipts for the number of whole
Depositary Shares representing the Preferred Stock so deposited, registered in
such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the Corporate
Office, except that, at the request, risk and expense of any person requesting
such delivery, such delivery may be made at such other place as may be
designated by such person. In each case, delivery will be made only upon
payment to the Depositary of all taxes and other governmental charges and any
fees payable in connection with such deposit and the transfer of the deposited
Preferred Stock.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred Stock
as set forth in the Certificate of Designations, as it may be amended.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.03. Optional Redemption of Preferred Stock.
_______________________________________
If the Certificate of Designations provides for redemption of the Preferred
Stock at the option of the Company, the Company (unless otherwise agreed
in writing with the Depositary), whenever it elects to redeem shares
of Preferred Stock, shall give the Depositary not less than 45 days'
prior written notice of the date of such proposed redemption and of
the number of shares of Preferred Stock held by the Depositary to be
redeemed and the applicable redemption price, as set forth in the Certificate
of Designations, including the amount, if any, of accrued and unpaid dividends
to the date of such redemption. Provided that the Company shall have
paid such redemption price in full to the Depositary on or prior to
the date of such redemption, the Depositary shall redeem (using the proceeds of
such redemption) the number of Depositary Shares representing such Preferred
Stock so redeemed by the Company. The Depositary shall mail, first-class
postage prepaid, notice of the redemption of Preferred Stock and the proposed
simultaneous redemption of the Depositary Shares representing the Preferred
Stock to be redeemed, not less than 30 nor more than 60 days prior to the date
fixed for redemption of such Preferred Stock and Depositary Shares (the
"redemption date"), to the Holders on the record date fixed for such
redemption, pursuant to Section 4.04 hereof, of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such
<PAGE> 10
6
Holders as the same appear on the records of the Depositary; but neither
failure to mail any such notice to one or more such Holders nor any defect in
any notice shall affect the sufficiency of the redemption as to other Holders.
The Company shall provide the Depositary with such notice, and each such notice
shall state: (i) the record date for the purposes of such redemption; (ii) the
redemption date; (iii) the number of Depositary Shares to be redeemed; (iv) if
fewer than all the Depositary Shares held by any Holder are to be redeemed, the
number of such Depositary Shares held by such Holder to be so redeemed; (v)
the redemption price; (vi) the place or places where Receipts evidencing
Depositary Shares to be redeemed are to be surrendered for payment of the
redemption price; (vii) that, from and after the redemption date, dividends in
respect of the Preferred Stock represented by the Depositary Shares to be
redeemed will cease to accrue and all other rights with respect to such
Depositary Shares will cease and terminate; and (viii) in the event that the
Depositary Shares evidence Preferred Stock convertible into or exchangeable for
Common Stock or other securities of the Company, that all conversion and
exchange rights, as the case may be, in respect of such Preferred Stock will
terminate at the close of business on the last business day preceding such
redemption date. If fewer than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed shall be selected by lot or pro
rata (as nearly as may be) or in any other equitable manner, in each case as
may be determined by the Company.
From and after the redemption date (unless the Company shall
have failed to redeem the shares of Preferred Stock to be redeemed by it as set
forth in the Company's notice mailed by the Depositary in accordance with the
preceding paragraph), (i) all dividends in respect of the shares of Preferred
Stock called for redemption shall cease to accrue; (ii) in the event that the
Depositary Shares evidence Preferred Stock convertible into or exchangeable for
Common Stock or other securities of the Company, the conversion and exchange
rights, as the case may be, in respect of such Preferred Stock shall terminate;
(iii) the Depositary Shares called for redemption shall be deemed no longer to
be outstanding; and (iv) all rights of the Holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall
cease and terminate. Upon surrender in accordance with said notice of the
Receipts evidencing such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed at a redemption price per Depositary Share equal to [SPECIFY FRACTION]
of the redemption price per share paid in respect of the shares of Preferred
Stock pursuant to the Certificate of Designations plus any other money and
other property represented by each such Depositary Share. The foregoing shall
be further subject to the terms and conditions of the Certificate of
Designations.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the Holder of
such Receipt upon its surrender to the Depositary, together with payment of the
redemption price for the Depositary Shares
<PAGE> 11
7
called for redemption, a new Receipt evidencing the Depositary Shares evidenced
by such prior Receipt and not called for redemption.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business 15 days
next preceding any selection of Depositary Shares and Preferred Stock to be
redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary Shares called or being called
for redemption in whole or in part, except as provided in the preceding
paragraph of this Section 2.03.
SECTION 2.04. Transfers of Receipts.
______________________
Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books transfers of Receipts upon any
surrender thereof by the Holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, together with evidence of the payment of any
transfer taxes and other governmental charges as may be required by law.
Upon such surrender, the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combinations and Split-ups of Receipts.
_______________________________________
Upon surrender by a Holder of a Receipt or Receipts at the Corporate Office or
such other office as the Depositary may designate for the purpose of effecting a
split-up or combination of Receipts, subject to the terms and conditions of
this Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of Preferred
_________________________________________________
Stock.
______
Any Holder of a Receipt or Receipts may withdraw any or all of the
Preferred Stock represented by the Depositary Shares evidenced by such Receipts
and all money and other property, if any, represented by such Depositary Shares
by surrendering such Receipt or Receipts at the Corporate Office or at such
other office as the Depositary may designate for such withdrawals; provided
that a Holder may not withdraw Preferred Stock (or money and other property, if
any, represented thereby) which has previously been called for redemption.
Thereafter, without unreasonable delay, the Depositary shall deliver to such
Holder, or to the person or persons designated by such Holder as hereinafter
provided, the number of whole shares of Preferred Stock and all such money and
other property, if any, represented by the Depositary Shares evidenced by the
Receipt or Receipts so surrendered for withdrawal, but holders of such whole
shares of Preferred Stock will not be entitled to
<PAGE> 12
8
deposit such Preferred Stock hereunder or to receive Depositary Shares
therefor. If the Receipt or Receipts delivered by the Holder to the Depositary
in connection with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of whole Depositary Shares representing the number of
whole shares of Preferred Stock to be withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Preferred Stock and
such money and other property, if any, to be withdrawn, deliver to such Holder,
or (subject to Sections 2.04 and 2.05) upon his order, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares. In no event
will fractional shares of Preferred Stock or Receipts evidencing fractional
Depositary Shares be distributed or issued by the Depositary. Delivery of the
Preferred Stock and such money and other property being withdrawn may be made
by the delivery of such certificates, documents of title and other instruments
as the Depositary may deem appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
If the Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the Holder of
the Receipt or Receipts being surrendered for withdrawal of Preferred Stock,
such Holder shall execute and deliver to the Depositary a written order so
directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such Holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank; provided that the Holder of
such Receipt shall pay the amount of any tax or other governmental charge due.
The Depositary shall deliver the Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at
the request, risk and expense of the Holder surrendering such Receipt or
Receipts and for the account of the Holder thereof, such delivery may be made
at such other place as may be designated by such Holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
________________________________________________
Split-up, Combination, Surrender and Exchange of Receipts.
__________________________________________________________
As a condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of any Receipt or, in the event that the
Depositary Shares evidence Preferred Stock convertible into or exchangeable
for Common Stock or other securities of the Company, to the exercise of any
conversion or exchange right referred to in Section 2.10, the Depositary,
any Agent or the Company may require any or all of the following:
(i) payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment,
the reimbursement) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to the Preferred Stock
being deposited or withdrawn, provided that, in the event that the Depositary
Shares evidence Preferred Stock convertible into or exchangeable for Common
Stock or other securities of the Company, the Company shall pay any
documentary, stamp or similar issue or transfer tax or other
<PAGE> 13
9
governmental charge due on the issuance of Common Stock or other securities
upon such conversion or exchange, as the case may be; and provided further that
the Holder of such Receipt shall pay the amount of any tax or other
governmental charge due if such shares of Common Stock or such other securities
are to be issued in a name other than that of such Holder); (ii) the production
of proof satisfactory to it as to the identity and genuineness of any signature
(or the authority of any signature); and (iii) compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The delivery of Receipts against Preferred Stock may be
suspended, the transfer of Receipts may be refused, the transfer, split-up,
combination, surrender or exchange of outstanding Receipts may be suspended
and, in the event that the Depositary Shares evidence Preferred Stock
convertible into or exchangeable for Common Stock or other securities of the
Company, the exercise of any conversion or exchange right referred to in
Section 2.10 may be suspended (i) during any period when the register of
holders of the Preferred Stock is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary or any Agent at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any shares of Preferred Stock that are
required to be registered under the Securities Act and the Company shall
deliver to the Depositary written notice that, at the time of deposit, a
registration statement under the Securities Act is in effect as to such shares
of Preferred Stock.
SECTION 2.08. Lost Receipts, etc.
___________________
In case any Receipt shall be mutilated or destroyed or lost or stolen, the
Depositary in its discretion may execute and deliver a Receipt of like form
and tenor in exchange and substitution for such mutilated Receipt or in lieu
of and in substitution for such destroyed, lost or stolen Receipt,
provided that the Holder thereof provides the Depositary with (i) evidence
satisfactory to the Depositary of such destruction, loss or theft of such
Receipt, of the authenticity and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.09. Cancellation and Destruction of Surrendered
___________________________________________
Receipts.
_________
All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law
or regulation, the Depositary is authorized to destroy such cancelled Receipts.
SECTION 2.10. Conversion or Exchange of Preferred Stock into
______________________________________________
Common Stock or Other Securities.
_________________________________
It is understood and agreed that the Depositary Shares are not convertible
into or exchangeable for Common Stock of the Company or any other securities
or property of the Company. Nevertheless, as a matter of convenience, in the
event that the Depositary Shares evidence Preferred Stock convertible into or
exchangeable for Common
<PAGE> 14
10
Stock or other securities of the Company, the Company hereby agrees to cause
the Depositary to accept (or to cause its conversion agent or exchange agent,
as the case may be, to accept) the delivery of Receipts for the purpose of
effecting conversions or exchanges of the Preferred Stock utilizing the same
procedures as those provided for delivery of Preferred Stock certificates to
effect such conversions or exchanges in accordance with the terms and
conditions of the Certificate of Designations; provided, however, that only
whole Depositary Shares may be so submitted for conversion or exchange.
Receipts may be surrendered with written instructions to the
Depositary to instruct the Company to cause the conversion or exchange of any
specified number of whole or fractional shares of Preferred Stock, convertible
into or exchangeable for Common Stock or other securities of the Company, that
is represented by the Depositary Shares evidenced by such Receipts into the
number of whole shares of Common Stock or whole number of other securities of
the Company obtained by dividing the aggregate liquidation preference of such
Depositary Shares by the Conversion Price (as such term is defined in the
Certificate of Designations) or exchange ratio then in effect, as such
Conversion Price or exchange ratio may be adjusted by the Company from time to
time as provided in the Certificate of Designations. Subject to the terms and
conditions of this Deposit Agreement and the Certificate of Designations, a
Holder of a Receipt or Receipts evidencing Depositary Shares representing whole
or fractional shares of Preferred Stock may surrender such Receipt or Receipts
to the Depositary at the Corporate Office or to such office or to such
Depositary's Agents as the Depositary may designate for such purpose, together
with (i) a notice of conversion or exchange thereof, as the case may be, duly
completed and executed (a "Notice of Conversion/Exchange"), and (ii) any
payment in respect of dividends required by the fifth paragraph of this Section
2.10, thereby directing the Depositary to instruct the Company to cause the
conversion or exchange, as the case may be, of the number of shares or
fractions thereof of underlying Preferred Stock specified in such Notice of
Conversion/Exchange into whole shares of Common Stock or a whole number of
other securities of the Company. In the event that a Holder delivers to the
Depositary for conversion or exchange a Receipt or Receipts which in the
aggregate are convertible into or exchangeable for less than (i) one whole
share of Common Stock or any number of whole shares of Common Stock plus an
excess constituting less than one whole share of Common Stock or (ii) one of
such securities or any whole number of such securities plus an excess
constituting less than one security, the Holder shall receive payment in lieu
of such fractional shares of Common Stock or fractional number of such
securities otherwise issuable in accordance with the last paragraph of this
Section 2.10. If more than one Receipt shall be delivered for conversion or
exchange, as the case may be, at one time by the same Holder, the number of
whole shares of Common Stock or the whole number of such securities issuable
upon conversion or exchange thereof, as the case may be, shall be computed on
the basis of the aggregate number of Receipts so delivered.
<PAGE> 15
11
Upon receipt by the Depositary of one or more Receipts, together
with a duly completed and executed Notice of Conversion/Exchange, the
Depositary shall, on the date of receipt of such Notice of Conversion/Exchange,
instruct the Company (i) to cause the conversion or exchange, as the case may
be, of the Depositary Shares evidenced by the Receipts so surrendered for
conversion or exchange as specified in the Notice of Conversion/Exchange and
(ii) to cause the delivery to the Holder or Holders of such Receipts of a
certificate or certificates evidencing the number of whole shares of Common
Stock or the whole number of such securities and the amount of money, if any,
to be delivered to the Holders of Receipts surrendered for conversion or
exchange in payment of any fractional shares of Common Stock or of any
fractional number of such securities otherwise issuable, as the case may be.
The Company shall, as promptly as practicable after receipt thereof, cause the
delivery to such Holder or Holders of (i) a certificate or certificates
evidencing the number of whole shares of Common Stock or the whole number of
such securities into or for which the Preferred Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts has been converted or
exchanged, as the case may be, and (ii) any money or other property to which
the Holder or Holders are entitled. The person or persons in whose name or
names any certificate or certificates for shares of Common Stock or for such
securities shall be issuable upon such conversion or exchange, as the case may
be, shall be deemed to have become the holder or holders of record of the
shares or securities represented thereby at the close of business on the date
such Receipt or Receipts shall have been surrendered to and a Notice of
Conversion/Exchange received by the Depositary, unless the stock transfer books
of the Company shall be closed on that date, in which event such person or
persons shall be deemed to have become such holder or holders of record on the
next succeeding day on which such stock transfer books are open. Upon such
conversion or exchange, the Depositary (i) shall deliver to the Holder a
Receipt evidencing the number of Depositary Shares, if any, which such Holder
has elected not to convert or exchange in excess of the number of Depositary
Shares representing Preferred Stock which has been so converted or exchanged,
as the case may be, (ii) shall cancel the Depositary Shares evidenced by
Receipts surrendered for conversion or exchange, as the case may be, and (iii)
shall deliver for cancellation to the transfer agent for the Preferred Stock
the shares of Preferred Stock represented by the Depositary Shares evidenced by
the Receipts so surrendered and so converted or exchanged, as the case may be.
If any Preferred Stock convertible into or exchangeable for
Common Stock or other securities of the Company shall be called by the Company
for redemption, the Depositary Shares representing such Preferred Stock may be
converted into or exchangeable for Common Stock or such securities as provided
in this Deposit Agreement until and including, but not after, the close of
business on the redemption date (as defined in Section 2.03) unless the Company
shall default in making payment of the redemption price. Upon receipt by the
Depositary of a Receipt or Receipts representing any Preferred Stock called for
redemption, together with a properly completed and executed Notice of
Conversion/Exchange, the shares of Preferred Stock held by the Depositary
represented by
<PAGE> 16
12
such Depositary Shares as to which conversion or exchange, as the case may be,
is requested shall be deemed to have been received by the Company for such
conversion or exchange.
Upon any conversion or exchange, as the case may be, of the
Preferred Stock underlying the Depositary Shares, no allowance, adjustment or
payment shall be made with respect to accrued dividends upon such Preferred
Stock, except that if any Holder of a Receipt surrenders such Receipt with
instructions to the Depositary for conversion or exchange of the underlying
Preferred Stock evidenced thereby during the period between the opening of
business on any dividend record date and the close of business on the
corresponding dividend payment date (except shares called for redemption on a
redemption date during such period), such Receipt must be accompanied by a
payment equal to the dividend thereon, if any, which the Holder of such Receipt
is entitled to receive on such dividend payment date in respect of the
underlying Preferred Stock to be converted or exchanged.
Upon the conversion or exchange of any shares of Preferred Stock
for which a duly completed and executed Notice of Conversion/Exchange has been
received by the Depositary, all dividends in respect of such Depositary Shares
shall cease to accrue, such Depositary Shares shall be deemed no longer
outstanding, all rights of the Holder of the Receipt with respect to such
Depositary Shares (except the right to receive the Common Stock or other
securities of the Company, any cash payable with respect to any fractional
shares of Common Stock or fractional number of such securities, as the case may
be, as provided herein and any cash payable on account of accrued dividends in
respect of the Preferred Stock so converted or exchanged and any Receipts
evidencing Depositary Shares not so converted or exchanged) shall terminate,
and the Receipt evidencing such Depositary Shares shall be cancelled in
accordance with Section 2.09 hereof.
No fractional shares of Common Stock or fractional number of
Securities, as the case may be, shall be issuable upon conversion or exchange
of Preferred Stock underlying the Depositary Shares. If, except for the
provisions of this Section 2.10 and the Certificate of Designations, any Holder
of Receipts surrendered to the Depositary for conversion or exchange of the
underlying Preferred Stock would be entitled to a fractional share of Common
Stock or a fractional security, as the case may be, upon such conversion or
exchange, the Company shall cause to be delivered to such Holder an amount in
cash for such fractional share or security determined in accordance with the
Certificate of Designations.
<PAGE> 17
13
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
______________________________________
Information.
____________
Any Holder may be required from time to time to file such proof
of residence or other information, to execute such certificates and to make
such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may
withhold or delay the delivery, transfer, redemption or exchange of any
Receipt, the withdrawal of the Preferred Stock represented by the Depositary
Shares evidenced by any Receipt, the distribution of any dividend or other
distribution, the sale of any rights or of the proceeds thereof, the exercise
of any conversion or exchange right referred to in Section 2.10 or the delivery
of any Common Stock or other securities of the Company upon such conversion or
exchange until such proof or other information is filed, such certificates are
executed or such representations and warranties are made.
SECTION 3.02. Payment of Fees and Expenses.
_____________________________
Holders of Receipts shall be obligated to make payments to the Depositary
of certain fees and expenses, as provided in Section 5.07, or provide
evidence reasonably satisfactory to the Depositary that such fees and expenses
have been paid. Until such payment is made, transfer of any Receipt or
any withdrawal of the Preferred Stock or money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused,
any dividend or other distribution may be withheld, any conversion or exchange
right may be refused and any part or all of the Preferred Stock or other
property represented by the Depositary Shares evidenced by such Receipt may be
sold for the account of the Holder thereof (after attempting by reasonable
means to obtain such payment prior to such sale), provided that notice of such
sale shall be sent by the Depositary to such Holder. Any dividend or other
distribution so withheld and the proceeds of any such sale may be applied to
any payment of such fees or expenses, the Holder of such Receipt remaining
liable for any deficiency. In the event the Depositary is required to pay any
such amounts, the Company shall reimburse the Depositary for payment thereof
upon the request of the Depositary and the Depositary shall, upon the Company's
request and as instructed by the Company, pursue its rights against such Holder
at the Company's expense.
SECTION 3.03. Representations and Warranties as to Preferred
______________________________________________
Stock.
______
The Company hereby represents and warrants that (i) the shares of
Preferred Stock deposited hereunder have been duly authorized and, when issued
and deposited hereunder, will be validly issued, fully paid and nonassessable,
(ii) the Depositary Shares have been duly authorized and, when the Receipts are
executed, countersigned, issued and delivered in the manner provided for
herein, such Depositary Shares will represent legal and valid interests in the
Preferred Stock deposited hereunder, and (iii) all corporate action required to
be taken for the authorization, issuance and delivery of such Preferred Stock
and Depositary Shares
<PAGE> 18
14
has been validly taken. Such representations and warranties shall survive the
deposit of the Preferred Stock and the issuance of Receipts.
SECTION 3.04. Representation and Warranty as to Receipts.
___________________________________________
The Company hereby represents and warrants that the Depositary Shares, when the
Receipts evidenced thereby are duly executed by the Depositary or duly
countersigned by an authorized signatory of the Registrar and issued, will
represent legal and valid interests in the Preferred Stock. Such
representation and warranty shall survive the deposit of the Preferred Stock
and the issuance of Receipts.
SECTION 3.05. Covenants and Representation and Warranty as to
_______________________________________________
Common Stock.
_____________
In the event that the Depositary Shares evidence Preferred Stock
convertible into or exchangeable for Common Stock, the Company covenants that
it will give written notice to the Depositary of any adjustments in the
conversion price or exchange ratio made pursuant to the Certificate of
Designations. The Company hereby represents and warrants that the Common Stock
issuable upon conversion or exchange of the Preferred Stock, when issued, will
be duly authorized, validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the conversion or exchange of the
Preferred Stock into such Common Stock. [to be modified if convertible into or
exchangeable for other securities of the Company]
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions.
___________________
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Preferred Stock, including any cash received upon
redemption of any shares of Preferred Stock pursuant to Section 2.03,
the Depositary shall, subject to Section 3.02, distribute to Holders
of Receipts on the record date fixed pursuant to Section 4.04 such amounts
of such sum as are, as nearly as practicable, in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts held
by such Holders; provided, however, that in case the Company or the Depositary
shall withhold from any cash dividend or other cash distribution in respect of
the Preferred Stock represented by the Receipts held by any Holder an amount on
account of taxes or as otherwise required by law, regulation or court order,
the amount made available for distribution or distributed in respect of
Depositary Shares represented by such Receipts subject to such withholding
shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any Holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest
<PAGE> 19
15
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to Holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash.
______________________________
Whenever the Depositary shall receive any distribution other than cash on the
Preferred Stock, the Depositary shall, subject to Section 3.02, distribute to
Holders of Receipts on the record date fixed pursuant to Section 4.04
such amounts of the securities or property received by it as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such Holders, in any manner that
the Depositary and the Company may deem equitable and practicable for
accomplishing such distribution. If, in the opinion of the Depositary
after consultation with the Company, such distribution cannot be made
proportionately among such Holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on
account of taxes or as otherwise required by law, regulation or court order),
the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with
approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the
public or private sale of the securities or property thus received, or any part
thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.02, be distributed
or made available for distribution, as the case may be, by the Depositary to
Holders of Receipts as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such
securities or property to the Holders of Receipts unless the Company shall have
provided to the Depositary an opinion of counsel stating that such securities
or property have been registered under the Securities Act or do not need to be
registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges.
_______________________________________________
If the Company shall at any time offer or cause to be offered to the persons in
whose names Preferred Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall, if the Company so directs, in each
such instance be made available by the Depositary to the Holders in such manner
as the Company shall instruct (including by the issue to such Holders of
warrants representing such rights, preferences or privileges); provided,
however, that (a) if at the time of the issuance or offering of any such
rights, preferences or privileges the Company determines that it is not lawful
or feasible to make such rights, preferences or privileges available to some or
all Holders of Receipts (by the issue of warrants or otherwise) or (b) if and
to the extent instructed by Holders who do not desire to exercise such rights,
preferences or privileges, the Depositary shall, if so instructed by the
Company, and if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences or privileges of such
Holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
<PAGE> 20
16
Section 3.02, be distributed by the Depositary to the Holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such rights,
preferences or privileges, unless the Company shall have provided to the
Depositary an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not need to be
registered.
If registration under the Securities Act of any securities to
which any rights, preferences or privileges relate is required in order for
Holders to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees that it will promptly file a
registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use all reasonable efforts
to cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such Holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the Holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until such a registration statement shall have become effective or unless
the offering and sale of such securities to such Holders under the Securities
Act and the Company shall have provided to the Depositary an opinion of counsel
to such effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
Holders, the Company agrees to use all reasonable efforts to take such action
or obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such Holders to
exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends; Fixing of Record Date for
______________________________________________
Holders of Receipts.
____________________
Whenever any cash dividend or other cash distribution shall become payable,
any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to
the Preferred Stock, or whenever the Depositary shall receive notice of (i) any
meeting at which holders of Preferred Stock are entitled to vote or of which
they are entitled to notice or (ii) any election on the part of the Company to
redeem any shares of Preferred Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Preferred Stock) for the determination
of the Holders who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, to
give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or whose Depositary Shares are to be so
redeemed.
SECTION 4.05. Voting Rights.
______________
Upon receipt of notice of any meeting at which the holders of Preferred
Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the Holders of Receipts a notice, which shall be provided by
<PAGE> 21
17
the Company and which shall contain (i) such information as is contained in
such notice of meeting, (ii) a statement that the Holders of Receipts at the
close of business on a specified record date fixed pursuant to Section 4.04
will be entitled, subject to any applicable provision of law, the Certificate
of Incorporation or the Certificate of Designations, to instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of Preferred
Stock represented by their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a Holder of a Receipt on such record date, the Depositary
shall, to the extent practicable, vote or cause to be voted the amount of
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
in accordance with the instructions set forth in such request. The Company
hereby agrees to take all reasonable action that may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Preferred Stock or
cause such Preferred Stock to be voted. In the absence of specific
instructions from the Holder of a Receipt, the Depositary will abstain from
voting to the extent of the Preferred Stock represented by the Depositary
Shares evidenced by such Receipt. The Depositary shall not be required to
exercise discretion in voting any Preferred Stock represented by the Depositary
Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Preferred Stock and
_____________________________________
Reclassifications, Recapitalizations, etc.
__________________________________________
Upon any change in the par value, or upon any split-up, combination or any
other reclassification, of the Preferred Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company
or to which it is a party or the sale of all or substantially all of
the Company's assets, the Depositary shall, upon the instructions of the
Company, treat any shares of stock or other securities or property
(including cash) that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Stock as new
deposited property under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the proportionate interests of Holders
thereof in the new deposited property so received in exchange for or upon
conversion of or in respect of such Preferred Stock. In any such case the
Depositary may, in its discretion, with the approval of the Company, execute
and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited property. Anything to the contrary herein notwithstanding,
Holders of Receipts shall have the right from and after the effective date of
any such change in par value, or upon any such split-up, combination or other
reclassification, of the Preferred Stock or any such recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company, or
sale of all or substantially all of the Company's assets to surrender such
Receipts to the Depositary with instructions to convert, exchange or surrender
the Preferred Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and property and
cash into which the Preferred Stock represented by such Receipts might have
been converted or for which such Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
<PAGE> 22
18
SECTION 4.07. Inspection of Reports.
______________________
The Depositary shall furnish to Holders of Receipts any reports and
communications received from the Company that are received by the
Depositary as the holder of Preferred Stock and that the Company is required
to furnish to Holders of the Preferred Stock.
SECTION 4.08. Lists of Receipt Holders.
_________________________
Promptly upon request from time to time by the Company, the Depositary shall
furnish to the Company a list, as of a recent date specified by the Company,
of the names, addresses and holdings of Depositary Shares of all persons
in whose names Receipts are registered on the books of the Depositary.
SECTION. 4.09. Tax and Regulatory Compliance.
______________________________
The Depositary shall be responsible for (i) preparation and mailing of form
1099s (or successor forms) for all open and closed accounts, (ii) foreign tax
withholding, (iii) withholding of tax on dividends payable to eligible Holders
of Receipts, (iv) mailing W-9 forms (or successor forms) to new Holders of
Receipts without a certified taxpayer identification number, (v) processing
certified W-9 forms (or successor forms), (vi) preparation and filing of state
information returns and (vii) escheatment services.
SECTION. 4.10. Withholding.
____________
Notwithstanding any other provision of this Deposit Agreement, in the event
that the Depositary determines that any distribution in property is subject
to any tax that the Depositary is obligated to withhold, the Depositary
may dispose of all or a portion of such property in such amounts and in
such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale at such place or places and upon such terms
as it shall deem proper after consultation with the Company, and the
Depositary shall distribute the net proceeds of any such sale
or the balance of any such property after deduction of such taxes to the
Holders of Receipts entitled thereto in proportion to the number of Depositary
Shares held by them respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
_____________________________________________
Books by the Depositary and the Registrar.
__________________________________________
Upon execution of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain at the Corporate Office facilities for the
execution and delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of Preferred
Stock and at the offices of any Agent, facilities for the delivery, transfer,
surrender and exchange, split-up, combination and redemption of Receipts and
deposit and withdrawal of Preferred Stock, all in accordance with the
provisions of this Deposit Agreement.
<PAGE> 23
19
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books shall be open at all
reasonable times for inspection by the Holders of Receipts, as provided by
applicable law. The Depositary shall consult with the Company upon receipt of
any request for inspection. The Depositary may close such books, at any time
or from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Preferred Stock represented by such Depositary Shares shall be listed on
any stock exchange, and if required by any such stock exchange, the Depositary
shall appoint, at the expense of the Company, a Registrar (acceptable to the
Company) for registry of Receipts or Depositary Shares in accordance with the
requirements of such exchange. Such Registrar (which may be the Depositary if
so permitted by such exchange) may be removed, and a substitute registrar
appointed, by the Depositary upon the request or with the approval of the
Company.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts, and the Depositary hereby accepts
such appointments.
SECTION 5.02. Prevention or Delay in Performance by the
__________________________________________
Depositary, Any Agent, the Registrar or the Company.
____________________________________________________
Neither the Depositary, any Agent, any Registrar nor the Company shall incur
any liability to any Holder of any Receipt, if by reason of any provision
of any present or future law or regulation thereunder of the United States
of America or of any other governmental authority, or by reason of any present
or future provision of the Certificate of Incorporation or the Certificate of
Designations, or by reason of any act of God or war or other circumstance
beyond the control of the relevant party, the Depositary, any Agent,
the Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing that the terms of this Deposit Agreement
provide shall be done or performed; nor shall the Depositary, any Agent,
any Registrar or the Company incur any liability to any Holder of a Receipt
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement
provide shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, Any Agent, the
______________________________________________
Registrar and the Company.
__________________________
Neither the Depositary, any Agent, any Registrar nor the Company assumes any
obligation or shall be subject to any liability under this Deposit
Agreement or any Receipt to Holders of Receipts so long as each of them
acts in good faith in the performance of such duties as are specifically
set forth in this Deposit Agreement.
Neither the Depositary, any Agent, any Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any action,
suit or other proceeding with respect to Preferred Stock, Depositary Shares or
Receipts that in its opinion may subject
<PAGE> 24
20
it to expense or liability, unless indemnity satisfactory to it against all
such expense and liability be furnished.
Neither the Depositary, any Agent, any Registrar nor the Company
shall be liable for any action taken or any failure to act in reliance upon the
advice of legal counsel, or the advice of or information provided by any
accountant, any Holder of a Receipt or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary, any
Agent, any Registrar and the Company may each rely and shall each be protected
in acting upon any written notice, request, direction or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any Holders of Receipts, on the one hand, and the
Company, on the other hand, the Depositary shall be entitled to act on such
claims, requests or instructions received from the Company, and shall be
entitled to the full indemnification set forth in Section 5.06 hereof in
connection with any action so taken.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the Preferred Stock or for the manner or
effect of any such vote, as long as any such action or non-action is in good
faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no covenants or obligations shall be
implied against the Depositary or any Registrar. The Depositary, its parents,
affiliates, or subsidiaries, any Depositary's Agent, and any Registrar may own,
buy, sell or deal in any class of securities of the Company and its affiliates
and in Receipts or Depositary Shares or become pecuniarily interested in any
transaction in which the Company or its affiliates may be interested or
contract with or lend money to or otherwise act as fully or as freely as if it
were not the Depositary, any Agent or the Registrar hereunder. The Depositary
may also act as transfer agent or registrar of any of the securities of the
Company and its affiliates or act in any other capacity for the Company or its
affiliates.
It is intended that neither the Depositary nor any Agent shall
be deemed to be an "issuer" of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Agent are acting only in a ministerial capacity as
Depositary for the Preferred Stock; provided, however, that the Depositary
agrees to comply with all information reporting and withholding requirements
applicable to it under law or this Deposit Agreement in its capacity as
Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of any registration statement pursuant to
which the Depositary Shares are registered under the
<PAGE> 25
21
Securities Act, the Preferred Stock, the Depositary Shares, the Receipts
(except as to the authenticity of its countersignature thereon) or any
instruments referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the Depositary is
responsible for its representations in this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary;
__________________________________________
Appointment of Successor Depositary.
____________________________________
The Depositary may at any time resign as Depositary hereunder by notice of
its election to do so delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and the acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor depositary and the acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. If a successor depositary shall not have been appointed in
60 days, the resigning or removed Depositary may petition a court of competent
jurisdiction to appoint a successor depositary. Every successor depositary
shall execute and deliver to its predecessor and to the Company an instrument
in writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the
Company, shall promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Preferred
Stock and any moneys or property held hereunder to such successor and shall
deliver to such successor a list of the Holders of all outstanding Receipts and
all records, books and other information relating thereto. Any successor
depositary shall promptly mail notice of its appointment to the Holders of
Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports.
______________________________
The Company agrees that it will deliver to the Depositary, and the Depositary
will, promptly after receipt thereof, transmit to the Holders of Receipts, in
each case at the address recorded in the Depositary's
<PAGE> 26
22
books, copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange upon which
the Preferred Stock, the Depositary Shares or the Receipts may be listed or by
the Certificate of Incorporation and the Certificate of Designations to be
furnished by the Company to holders of Preferred Stock. Such transmission will
be at the Company's expense, and the Company will provide the Depositary with
such number of copies of such documents as the Depositary may reasonably
request. In addition, the Depositary will transmit to the Holders of Receipts
at the Company's expense such other documents as may be requested by the
Company.
SECTION 5.06. Indemnification by the Company.
_______________________________
The Company agrees to indemnify the Depositary, any Agent and any Registrar
against, and hold each of them harmless from, any liability, costs and
expenses (including reasonable attorneys' fees) that may arise out of, or in
connection with, its acting as Depositary, Agent or Registrar, respectively,
under this Deposit Agreement and the Receipts, except for any liability
arising out of negligence or bad faith on the part of any such entity.
The obligations of the Company set forth in this Section 5.06 shall survive
any succession of any Depositary, Registrar or Agent or termination of this
Deposit Agreement.
SECTION 5.07. Fees, Charges and Expenses.
___________________________
The Company shall pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The
Company shall pay all fees of the Depositary in connection with the
initial deposit of the Preferred Stock and the initial issuance of the
Depositary Shares evidenced by the Receipts, any redemption of the Preferred
Stock at the option of the Company and all withdrawals of Preferred Stock
by Holders of Depositary Shares. Other than payment of any tax or other
governmental charge due upon the issuance of shares of Common Stock or
other securities of the Company issuable upon conversion or
exchange of the Preferred Stock or upon delivery of Preferred Stock and the
money and/or other property being withdrawn pursuant to Section 2.06 to a
person other than the Holder as specified in the conversion/exchange notice
relating thereto or in the written order delivered to the Depositary by the
Holder, the Company will pay any and all issue and other taxes (other than
taxes based on income) that may be payable in respect of any issue or delivery
of shares of Common Stock or other securities of the Company on conversion or
exchange of the Preferred Stock. All other transfer and other taxes and
governmental charges shall be at the expense of Holders of Depositary Shares.
If a Holder of Receipts requests the Depositary to perform duties not required
under this Deposit Agreement, the Depositary shall notify the Holder of the
cost of such performance of such duties before performing such duties, and such
Holder will be liable for the charges and expenses related to such performance.
Except as otherwise provided herein, all other reasonable fees and expenses of
the Depositary and any Depositary's Agent hereunder and of any Registrar
(including, in each case, reasonable fees and expenses of counsel) incident to
the performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such fees and expenses. The Depositary shall present its
statement for fees and expenses to the Company once every three months or at
such other intervals as the Company and the Depositary may agree.
<PAGE> 27
23
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.
__________
The form of the Receipts and any provision of this Deposit Agreement may at
any time and from time to time be amended by agreement between the Company
and the Depositary in any respect that they may deem necessary or desirable;
provided, however, that no such amendment which (i) shall materially and
adversely alter the rights of the Holders of Receipts (provided that any
change in the fees of any Depositary, Registrar or transfer agent shall
not be deemed to materially and adversely alter the rights of such Holders)
or (ii) would be materially and adversely inconsistent with the rights
granted to the holders of the Preferred Stock pursuant to the Certificate of
Designations shall be effective unless such amendment shall have
been approved by the Holders of at least a majority of the Depositary Shares
then outstanding. Any amendment that shall impose any fees, taxes or charges
(other than fees and charges provided for herein or in the Receipts), or that
shall otherwise prejudice any substantial existing right of Holders of
Receipts, shall not become effective as to Receipts until the expiration of 90
days after notice of such amendment shall have been given to the Holders.
Every Holder of a Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold such Receipt, to consent and agree to
such amendment and to be bound by this Deposit Agreement as amended thereby.
In no event shall any amendment impair the right of the Holder of any Receipt
to surrender such Receipt and receive the Preferred Stock therefor, subject to
the terms hereof.
SECTION 6.02. Termination.
____________
This Deposit Agreement may be terminated by the Company at any time upon
not less than 60 days' prior written notice to the Depositary, in which case,
upon a date that is not later than 30 days after the date of such notice, the
Depositary shall deliver or make available for delivery to each Holder,
upon surrender of such Holder's Receipt or Receipts, such number of
whole shares of Preferred Stock represented by such Receipt or Receipts.
In the event that such Receipt or Receipts should represent a fractional
number of shares of Preferred Stock, the Depositary shall aggregate all such
interests in fractional shares of Preferred Stock and, with the approval
of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting the distribution of such interests,
including the public or private sale of the whole number of shares of Preferred
Stock so aggregated, or any part thereof, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall be
distributed or made available for distribution, as the case may be, by the
Depositary to Holders of such Receipts evidencing an interest in fractional
shares of Preferred Stock. If a
<PAGE> 28
24
Holder shall not have so surrendered such Holder's Receipt or Receipts in
exchange for whole shares of Preferred Stock on or prior to the effective date
of termination of this Deposit Agreement, such Holder shall for all purposes,
including the payment of dividends, be deemed to be a Holder of the appropriate
number of Depositary Shares previously represented by such Receipt or Receipts
and shall thereafter surrender to the Company such Receipt or Receipts in
exchange for whole shares of Preferred Stock. In the event that such Receipt
or Receipts should represent an interest in fractional shares of Preferred
Stock, the Company shall aggregate all such interests in fractional shares of
Preferred Stock and adopt such method as it deems equitable and practicable for
the purpose of effecting the distribution of such interest, including the
public or private sale of the whole number of shares of Preferred Stock so
aggregated, or any part thereof, at such place or places and upon such terms as
it may deem proper. The net proceeds of any such sale shall be distributed by
the Company to Holders of such Receipts evidencing an interest in fractional
shares of Preferred Stock. Upon termination of this Deposit Agreement, the
Depositary shall surrender to the Company any shares of Preferred Stock held by
the Depositary and the Company shall hold such Preferred Stock for the benefit
of the Holder of Receipts which previously represented such Preferred Stock.
This Agreement shall automatically terminate after (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03
or withdrawn pursuant to Section 2.06, (ii) in the event that the Depositary
Shares represent Preferred Stock convertible into or exchangeable for Common
Stock or other securities of the Company, each share of Preferred Stock shall
have been converted into or exchanged for shares of Common Stock or other
securities of the Company pursuant to Section 2.10, as the case may be, or
(iii) there shall have been made a final distribution in respect of the
Preferred Stock in connection with any liquidation, dissolution or winding up
of the Company and such distribution shall have been distributed to the Holders
of Receipts pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement except
for its obligations to the Depositary, any Depositary's Agent and any Registrar
under Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts.
_____________
This Deposit Agreement may be executed in any number of counterparts, and by
each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original,
but all such counterparts taken together shall constitute one and the same
instrument. Delivery of
<PAGE> 29
25
an executed counterpart of a signature page to this Deposit Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Deposit Agreement. Copies of this Deposit Agreement shall be filed with
the Depositary and the Depositary's Agents and shall be open to inspection
during business hours at the Corporate Office and the respective offices of the
Depositary's Agents, if any, by any Holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties.
______________________________
This Deposit Agreement is for the exclusive benefit of the parties hereto,
including Holders of the Receipts, and their respective successors hereunder,
and shall not be deemed to give any legal or equitable right, remedy or claim
to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions.
_________________________
In case any one or more of the provisions contained in this Deposit Agreement
or in the Receipts should be or become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected, prejudiced
or disturbed thereby.
SECTION 7.04. Notices.
________
Any and all notices to be given to the Company hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, or by telegram, facsimile transmission or other
electronic means of communication confirmed by letter, addressed to the
Company at:
THE DIAL CORP
Dial Tower
Phoenix, Arizona 85077
Attention: Treasurer (with a copy to Secretary)
Telephone No.: 602/207-4000
Facsimile No.: 602/
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram, facsimile transmission or
other electronic means of communication confirmed by letter, addressed to the
Depositary at the Corporate Office.
Any notices given to any Holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram, facsimile transmission or
other electronic means of communication, addressed to such Holder at the
address of such Holder as it appears on the books of the Depositary or, if such
Holder shall have filed with the Depositary in a timely
<PAGE> 30
26
manner a written request that notices intended for such Holder be mailed to
some other address, at the address designated in such request.
SECTION 7.05. Holders of Receipts Are Parties.
________________________________
The Holders of Receipts from time to time shall be deemed to be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance of delivery thereof.
SECTION 7.06. Governing Law.
______________
This Deposit Agreement and the Receipts and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, and
construed in accordance with, the law of the State of New York applicable
to contracts made and to be performed entirely within such State.
SECTION 7.07. Inspection of Deposit Agreement and Certificate
_______________________________________________
of Designations.
________________
Copies of this Deposit Agreement and the Certificate of Designations shall be
filed with the Depositary and any Agent and shall be open to inspection by
any Holder of a Receipt during business hours at the Corporate Office and the
respective offices of any Agent.
SECTION 7.08. Headings.
_________
The headings of articles and sections in this Deposit Agreement and in the
form of the Receipt set forth in Exhibit A hereto have been inserted for
convenience only and are not to be regarded as a part of this Deposit
Agreement or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
IN WITNESS WHEREOF, THE DIAL CORP and [NAME OF BANK] have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all Holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
<TABLE>
<S> <C>
THE DIAL CORP
By:
________________________
Attest: Authorized Officer
[NAME OF BANK]
By:
________________________
Attest: Authorized Officer
</TABLE>
<PAGE> 31
<TABLE>
<S> <C>
Exhibit A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ______________DEPOSITARY SHARES
TDR
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING____________ [specify fraction] PREFERRED STOCK[, SERIES ___] OF
THE DIAL CORP
CUSIP ______________
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE SEE REVERSE FOR CERTAIN DEFINITIONS
_________________________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing _______ [specify fraction] of one share of ______ [Series___]
Preferred Stock, $______ par value (the "Stock"), of THE DIAL CORP, a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), on deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of ____________, 199__ (the "Deposit Agreement"), among the Company, the
Depositary and the Holders from time to time of Receipts for Depositary Shares. By accepting this Receipt the Holder
hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall
have been executed by the Depositary by the manual signature of a duly authorized officer or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the Receipts by the manual signature of a duly authorized
officer thereof.
Dated: Countersigned:
By __________________________ By __________________________
Depositary Registrar
</TABLE>
<PAGE> 32
<TABLE>
[FORM OF REVERSE OF RECEIPT]
THE DIAL CORP
THE DIAL CORP WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF RECEIPTS WHO
SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE CERTIFICATE OF DESIGNATIONS WITH
RESPECT TO THE PREFERRED STOCK[, SERIES ______] OF THE DIAL CORP. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
================================================================
The following abbreviations when used in the instructions on the face of this
receipt shall be construed as though they were written out in full according to applicable laws
or regulations.
<S> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT -_________ Custodian _____
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with
right of survivorship ____________________________________________
and not as tenants in (State)
common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
For value received,___________________________ hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
=========================================================================================
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING
POSTAL ZIP CODE OF ASSIGNEE
_________________________________________________________________________________________
__________________________________________________ Depositary Shares represented by the
within Receipt, and do hereby irrevocably constitute and appoint ______________ Attorney
to transfer the said Depositary Shares on the books of the within named Depositary with
full power of substitution in the premises.
Dated _______________________
___________________________________________________
NOTICE: The signature to the assignment must
correspond with the name as written
upon the face of this Receipt in
every particular, without alteration
or enlargement or any change whatever.
</TABLE>
<PAGE> 1
EXHIBIT 5
June 27, 1994
The Dial Corp
Dial Tower
Phoenix, Arizona 85077
Ladies and Gentlemen:
This opinion is furnished in connection with a Registration Statement on
Form S-3 (the "Registration Statement") filed by The Dial Corp (the "Company")
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act") with respect to (i)
unsecured debt securities of the Company (the "Debt Securities"), which may be
either senior (the "Senior Debt Securities") or subordinated (the "Subordinated
Debt Securities"), (ii) warrants to purchase Debt Securities (the "Debt
Warrants"), (iii) shares of preferred stock of the Company (the "Preferred
Stock"), (iv) depositary shares (the "Depositary Shares") representing interests
in Preferred Stock, (v) shares of Common Stock of the Company (the "Common
Stock"), and (vi) warrants to purchase Common Stock (the "Common Warrants") with
an aggregate issue price of up to $500,000,000. Any Subordinated Debt Securities
and Preferred Stock may be convertible into shares of Common Stock.
I have examined, or caused to be examined, the certificate of incorporation
and bylaws of the Company, each as amended to date; the records of its corporate
proceedings; the Registration Statement, including the exhibits thereto; the
form of Indenture between the Company and the Chase Manhattan Bank, N.A., as
Trustee, relating to Senior Debt Securities (the "Senior Indenture"); the form
of Indenture between the Company and Continental Bank, National Association, as
Trustee, relating to Subordinated Debt Securities (the "Subordinated
Indenture"); the Statements of Eligibility on Form T-1 under the Trust Indenture
Act of 1939 (the "Trust Indenture Act"), previously filed or to be filed with
the Commission; the forms of Warrant Agreements between the Company and one or
more warrant agents (each a "Warrant Agent") relating to the Debt Warrants or
the Common Warrants, as the case may be; the form of Deposit Agreement between
the Company and a depositary (the "Depositary") relating to the Depositary
Shares; and such other documents, instruments, statements and records of the
Company as I have deemed relevant and necessary or appropriate in connection
with the opinions hereinafter expressed.
Based upon the foregoing, I am of the opinion that:
1. Upon the taking of appropriate corporate action by the Company; the
effectiveness of the Registration Statement under the Securities Act; the
qualification of the Senior Indenture or the Subordinated Indenture, as the
case may be, under the Trust Indenture Act; the due execution and delivery
by the parties thereto of (a) the Senior Indenture or the Subordinated
Indenture, as the case may be, and each amendment of or supplement to the
Senior Indenture or the Subordinated Indenture, as the case may be, and (b)
a Warrant Agreement, as referred to above, relating to Debt Warrants, and
each amendment thereof or supplement thereto (each such Warrant Agreement,
as so amended or supplemented, being referred to as a "Debt Warrant
Agreement") assuming that the relevant Indenture and Debt Warrant Agreement
are consistent with the forms thereof filed as exhibits to the Registration
Statement; and the due execution of the Debt Securities and the Debt
Warrants on behalf of the Company, the Debt Securities and Debt Warrants
will be duly and validly authorized and, when the Debt Securities are duly
authenticated by the relevant Trustee and the Debt Warrants are duly
authenticated by the relevant Warrant Agent and sold and delivered at the
price and in accordance with the terms set forth in the Registration
Statement and the supplement or supplements to the relevant Prospectus
included therein, the Debt Securities and the Debt Warrants will be valid
and binding obligations of the Company entitled to the benefits of the
relevant Indenture and Debt Warrant Agreement, except to the extent the
foregoing may be subject to the effects of any applicable bankruptcy,
reorganization,
<PAGE> 2
The Dial Corp
June 27, 1994
Page 2
insolvency or other similar laws affecting creditors' rights generally
and to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).
2. Upon the taking of appropriate corporate action by the Company; the
effectiveness of the Registration Statement under the Securities Act; the
due execution and delivery by the parties thereto of (a) a Warrant
Agreement, as referred to above, relating to Common Warrants, and each
amendment thereof or supplement thereto (each such Warrant Agreement, as so
amended or supplemented, being referred to as a "Common Warrant Agreement")
and (b) a Deposit Agreement, as referred to above, relating to Depositary
Shares, and each amendment thereof or supplement thereto (each such Deposit
Agreement, as so amended or supplemented, being referred to as a "Deposit
Agreement"), assuming that the relevant Common Warrant Agreement and
Deposit Agreement are consistent with the forms thereof filed as exhibits
to the Registration Statement; and the due execution of the Common Warrants
on behalf of the Company and of the receipts evidencing interests in the
Depositary Shares on behalf of the Company, the Common Warrants and the
Depositary Shares will be duly and validly authorized and, when the Common
Warrants are duly authenticated by the relevant Warrant Agent and the
receipts evidencing rights in the Depositary Shares are duly authenticated
by the relevant Depositary and the Common Warrants and Depositary Shares
are sold and delivered at the price and in accordance with the terms set
forth in the Registration Statement and the supplement or supplements to
the relevant Prospectus included therein, the Common Stock and the
Preferred Stock will be validly issued, fully paid and nonassessable, the
Depositary Shares will be validly issued and will entitle the holders
thereof to the rights specified in the Deposit Agreement and the depositary
receipts evidencing rights therein, and the Common Warrants will be valid
and binding obligations of the Company, entitled to the benefits of the
relevant Common Warrant Agreement, except to the extent the foregoing may
be subject to the effects of any applicable bankruptcy, reorganization,
insolvency or other similar laws affecting creditors' rights generally and
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
3. Upon the taking of appropriate corporate action by the Company, and
the effectiveness of the Registration Statement under the Securities Act,
the Common Stock and Preferred Stock when issued and delivered will be
validly issued, fully paid and nonassessable.
4. Upon the taking of appropriate corporate action by the Company, the
Common Stock issuable upon conversion of any issue of convertible
Subordinated Debt Securities or Preferred Stock, when issued and delivered
upon conversion of such Debt Securities or Preferred Stock, will be validly
issued, fully paid and non-assessable.
I hereby consent to the reference to my name in the Registration Statement
and further consent to the inclusion of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, I do not hereby admit that I am
in the category of persons whose consent is required under the Securities Act or
the rules and regulation of the Securities and Exchange Commission.
Very truly yours,
L. Gene Lemon
<PAGE> 1
EXHIBIT 8
SHEARMAN & STERLING
153 E. 53RD STREET
NEW YORK, NY 10022-4676
June 27, 1994
The Dial Corp
Dial Tower
Phoenix, Arizona 85077
Ladies and Gentlemen:
We are acting as special federal income tax counsel for The Dial Corp (the
"Company") in connection with the preparation and filing with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, of a Prospectus Supplement, dated the date hereof, to a Prospectus,
dated the date hereof, contained in the Registration Statement for the Company
on Form S-3 (the "Registration Statement"). The Prospectus Supplement relates to
the offering by the Company of its Medium-Term Notes in an aggregate principal
amount of $500,000,000.
We are of the opinion that the discussion set forth in the Prospectus
Supplement under the caption "CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES", insofar as it relates to statements of law or legal conclusions,
is correct in all material respects. This discussion is based upon the Internal
Revenue Code of 1986, as amended, Treasury Regulations (including proposed
Regulations and temporary Regulations) promulgated thereunder, rulings, official
pronouncements and judicial decisions, all as in effect on the date hereof and
all of which are subject to change, possibly with retroactive effect.
We hereby consent to the use of this letter as an Exhibit to the
Registration Statement.
Very truly yours,
SHEARMAN & STERLING
LMB/CAH
<PAGE> 1
EXHIBIT 12.1
THE DIAL CORP -- TOTAL ENTERPRISE
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------------- ------------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
------- ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings available for fixed charges:
Pretax income from continuing
operations........................ $28,084 $17,277 $171,649 $120,334 $ 72,380 $125,769 $ 73,086
Minority interests.................. (100) (158) 3,618 2,814 3,543 8,357 8,219
Fixed charges, excluding capitalized
interest.......................... 24,075 22,576 91,620 100,149 101,253 107,774 113,645
------- ------- -------- -------- -------- -------- --------
$52,059 $39,695 $266,887 $223,297 $177,176 $241,900 $194,950
======= ======= ======== ======== ======== ======== ========
Fixed charges:
Interest expense.................... $12,369 $13,369 $ 49,965 $ 56,049 $ 56,768 $ 63,667 $ 70,182
Interest capitalized................ 83 58 149 320 590 436 964
Estimated portion of rental expense
representing interest............. 11,706 9,207 41,655 44,100 44,485 44,107 43,463
------- ------- -------- -------- -------- -------- --------
$24,158 $22,634 $ 91,769 $100,469 $101,843 $108,210 $114,609
======= ======= ======== ======== ======== ======== ========
Ratio of earnings (available for fixed
charges) to fixed charges........... 2.16 1.75 2.91 2.22 1.74 2.24 1.70
======= ======= ======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
EXHIBIT 12.2
THE DIAL CORP -- TOTAL ENTERPRISE
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------------- ------------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
------- ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings available for fixed charges
and preferred stock dividends:
Pretax income from continuing
operations........................ $28,084 $17,277 $171,649 $120,334 $ 72,380 $125,769 $ 73,086
Minority interests.................. (100) (158) 3,618 2,814 3,543 8,357 8,219
Fixed charges, excluding capitalized
interest and preferred stock
dividends......................... 24,075 22,576 91,620 100,149 101,253 107,774 113,645
------- ------- -------- -------- -------- -------- --------
$52,059 $39,695 $266,887 $223,297 $177,176 $241,900 $194,950
======= ======= ======== ======== ======== ======== ========
Fixed charges and preferred stock
dividends:
Interest expense.................... $12,369 $13,369 $ 49,965 $ 56,049 $ 56,768 $ 63,667 $ 70,182
Interest capitalized................ 83 58 149 320 590 436 964
Estimated portion of rental expense
representing interest............. 11,706 9,207 41,656 44,100 44,485 44,107 43,463
Pretax earnings required to cover
preferred stock dividends......... 457 435 1,746 1,816 3,156 1,868 1,997
------- ------- -------- -------- -------- -------- --------
$24,615 $23,069 $ 93,515 $102,285 $104,999 $110,077 $116,606
======= ======= ======== ======== ======== ======== ========
Ratio of earnings (available for fixed
charges and preferred stock
dividends) to fixed charges......... 2.12 1.72 2.85 2.18 1.69 2.20 1.67
======= ======= ======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
EXHIBIT 25.2
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION
305(B)(2)
------------------------
CONTINENTAL BANK, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
36-0947896
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
231 SOUTH LASALLE STREET, CHICAGO, ILLINOIS
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
60697
(ZIP CODE)
------------------------
THE DIAL CORP
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION
OF INCORPORATION OR ORGANIZATION)
DIAL TOWER
PHOENIX, ARIZONA
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
36-1169950
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
85077
(ZIP CODE)
DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Chicago Clearing House Association, 164 W. Jackson Boulevard,
Chicago, Illinois.
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System, Washington,
D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
AS OF JUNE 21, 1994
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
- --------------- -------------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL
RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
1
<PAGE> 3
AS OF JUNE 21, 1994
<TABLE>
<CAPTION>
COL. D
PERCENTAGE OF
VOTING SECURITIES
COL. C REPRESENTED BY
COL. A COL. B AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
- -------------- --------------- -------------- ------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF JUNE 21, 1994
<TABLE>
<CAPTION>
COL. D
PERCENTAGE OF
VOTING SECURITIES
COL. C REPRESENTED BY
COL. A COL. B AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
- -------------- --------------- -------------- ------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE:
AS OF JUNE 21, 1994
<TABLE>
<CAPTION>
COL. B
WHETHER THE
SECURITIES COL. C COL. D
ARE VOTING AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
COL. A OR NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
TITLE OF CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- --------------- ------------- ------------------------------------ -----------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
2
<PAGE> 4
AS OF JUNE 21, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------- ------------ ---------------------------------- ----------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH
PERSON.
AS OF JUNE 21, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------- ------------ ---------------------------------- ----------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF JUNE 21, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- ------------------- ------------ ---------------------------------- ----------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE> 5
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF JUNE 21, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ----------------------- ---------------------- ---------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE
THAN ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE
WHETHER THERE HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES,
IDENTIFY THE INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY
SUCH DEFAULT.
There is not nor has there been a default with respect to
securities under this indenture. The trustee is not a trustee under
other indentures under which securities issued by the obligor are
outstanding.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A copy of the Articles of Association of Continental Bank, National
Association as now in effect, incorporated herein by reference to Exhibit 1
to T-1; Registration No. 33-40462.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1; Registration No.
33-26747.
3. A copy of the authorization to exercise corporate trust powers,
incorporated herein by reference to Exhibit 3 of Amendment No. 1 to T-1;
Registration No. 2-51075.
4. A copy of the existing By-laws of Continental Bank, National
Association as now in effect, incorporated herein by reference to Exhibit 4
to T-1; Registration No. 33-43020.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of
Amendment No. 1 to T-1; Registration No. 2-51075.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority, filed herewith.
4
<PAGE> 6
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
CONTINENTAL BANK, NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY CAUSED
THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF CHICAGO, AND STATE OF ILLINOIS, AS
OF THE 21ST DAY OF JUNE, 1994.
CONTINENTAL BANK, NATIONAL
ASSOCIATION
By /s/ K. L. CLARK
------------------------------------
K. L. Clark
Trust Officer
5
<PAGE> 7
EXHIBIT 7
(OFFICIAL PUBLICATION)
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
CONTINENTAL BANK, NATIONAL ASSOCIATION
Charter No. 13639 National Bank Region No. 7
In the state of Illinois at the close of business on March 31, 1994 published in
response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
<TABLE>
<CAPTION>
IN MILLIONS
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............................................ $ 1,786
Interest-bearing balances..................................................................... 1,226
Securities:
Held-to-maturity securities................................................................... 536
Available-for-sale securities................................................................. 1,192
Federal funds sold and securities purchased under agreements to resell in domestic offices of
the bank
and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold............................................................................ 727
Securities purchased under agreements to resell............................................... 1,044
Loans and lease financing receivables:
Loans and leases, net of unearned income............................................ $11,917
LESS: Allowance for loan and lease losses........................................... 320
LESS: Allocated transfer risk reserve............................................... 0
Loans and leases, net of unearned income, allowance, and reserve.............................. 11,597
Assets held in trading accounts................................................................. 2,442
Premises and fixed assets (including capitalized leases)........................................ 228
Other real estate owned......................................................................... 212
Investments in unconsolidated subsidiaries and associated companies............................. 0
Customers' liability to this bank on acceptances outstanding.................................... 112
Intangible assets............................................................................... 0
Other assets.................................................................................... 1,343
-------
TOTAL ASSETS.................................................................................. $22,445
========
LIABILITIES
Deposits:
In domestic offices........................................................................... $ 8,874
Noninterest-bearing............................................................... $2,560
Interest-bearing.................................................................. 6,314
In foreign offices, Edge and Agreement subsidiaries, and IBFs................................. 4,504
Noninterest-bearing............................................................... $ 13
Interest-bearing.................................................................. 4,491
Federal funds purchased and securities sold under agreements to repurchase in domestic offices
of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased..................................................................... 1,051
Securities sold under agreements to repurchase.............................................. 300
Demand notes issued to the U.S. Treasury...................................................... 1,296
Trading liabilities........................................................................... 1,220
Other borrowed money:
With original maturity of one year or less.................................................. 1,534
With original maturity of more than one year................................................ 37
Mortgage indebtedness and obligations under capitalized leases................................ 0
Bank's liability on acceptances executed and outstanding...................................... 112
Subordinated notes and debentures............................................................. 398
Other liabilities............................................................................. 1,020
-------
TOTAL LIABILITIES........................................................................... 20,346
-------
Limited-life preferred stock and related surplus.............................................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................................. 0
Common stock.................................................................................. 685
Surplus....................................................................................... 827
Undivided profits and capital reserves........................................................ 598
Net unrealized holding gains (losses) on available-for-sale securities........................ (6)
Cumulative foreign currency translation adjustments........................................... (5)
-------
TOTAL EQUITY CAPITAL........................................................................ 2,099
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL......................... $22,445
=======
</TABLE>
I, John J. Higgins, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
/s/ John J. Higgins
Controller
May 10, 1994
