DC HOLDCO, INC.
[THE ▇▇▇▇ DISNEY COMPANY]
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK AND DEPOSITARY SHARES)
, 1995
-----------
From time to time, DC Holdco, Inc., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement". Terms defined in the Underwriting Agreement
are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus, which, among
other things, relates to the Preferred Stock [Depositary Shares] and has filed
with, or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Preferred Stock [Depositary Shares],
pursuant to Rule 424 of the Commission's regulations under the Securities Act of
1933, as amended (the "1933 Act") and/or a term sheet or an abbreviated term
sheet (each a "Term Sheet"), pursuant to Rule 434 of the Commission's
regulations under the Securities Act (the "1993 Act Regulations"), specifically
relating to the Preferred Stock [Depositary Shares]. The payment of dividends
on the redemption price of and the liquidation preference of the Preferred Stock
[Underlying Preferred Shares] may be guaranteed by The ▇▇▇▇ Disney Company, a
Delaware corporation ("Disney").(1) The term Registration Statement means
---------------------
(1) Each reference to Disney will be included only if the Preferred Stock
[Underlying Preferred Shares] is guaranteed by Disney.
the registration statement as amended to the date of this Agreement. The term
Basic Prospectus means the prospectus included in the Registration Statement.
The term Prospectus means the Basic Prospectus together with the Prospectus
Supplement and Term Sheet, if any. The term preliminary prospectus means a
preliminary prospectus supplement specifically relating to the Shares together
with the Basic Prospectus. As used herein, the term Incorporated Documents
shall mean all the documents, financial statements and schedules incorporated by
reference in the Registration Statement or Prospectus or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, and any reference to any amendment or supplement to the Registration
Statement or the Prospectus shall be deemed to refer to and include any
documents, financial statements and schedules filed by the Company, Disney [or
Capital Cities/ABC, Inc. ("Capital Cities")] with the Commission under the
Securities Exchange Act of 1934 (the "1934") Act and so incorporated by
reference or deemed to be incorporated therein. Notwithstanding the foregoing,
for purposes of this Agreement any prospectus, prospectus supplement, term sheet
or abbreviated term sheet prepared or filed with respect to an offering pursuant
to the Registration Statement of a series of securities other than the Shares
shall not be deemed to have supplemented the Prospectus.
1. REPRESENTATIONS AND WARRANTIES. The Company [and Disney, jointly and
severally] represents and warrants to each of the Underwriters that:
(a) The Incorporated Documents, when they became effective or were filed
(or, if an amendment with respect to any such Incorporated Document was
filed or became effective, when such amendment was filed or became
effective) with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act, and any
Incorporated Documents filed subsequent to the date of the Underwriting
Agreement and prior to the Closing Date, will, when they are filed with the
Commission, comply in all material respects with the requirements of the
1934 Act; no such Incorporated Document, when it became effective or was
filed (or, if an amendment with respect to any such incorporated Document
was filed or became effective, when such amendment was filed or became
effective) with the Commission, contained, and no Incorporated Document
filed subsequent to the date of the Underwriting Agreement and prior to the
Closing Date will contain, an untrue statement of a material fact or
omitted, or will omit, to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
2
(b) The Registration Statement, at the time it became effective, complied
in all material respects with the provisions of the 1933 Act and the 1933
Act Regulations; as of the date of the Underwriting Agreement, the
Registration Statement and the Prospectus, and any supplements or
amendments thereto, complied in all material respects with the provisions
of the 1933 Act and the 1933 Act Regulations; and the Registration
Statement and the Prospectus, and any such supplement or amendment thereto,
at all such times did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; except that this
representation and warranty does not apply to statements or omissions in
the Registration Statement, the Prospectus or any preliminary prospectus,
or any amendment or supplement thereto, made in reliance upon information
furnished to the Company in writing by or on behalf of the Underwriters
expressly for use therein or to those parts of the Registration Statement
which constitute the Trustee's Statement of Eligibility and Qualification
on Form T-1 (the "Form T-1") under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). There is no contract or document of a character
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which is not
described or filed as required.
(c) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, stock option
agreements, employee benefit plans or the exercise of convertible
securities referred to in the Prospectus); all of the issued and
outstanding shares of the Common stock, par value $0. per share, of the
Company (the "Common Stock") have been duly authorized and validly issued
and are fully paid and nonassessable; the Shares [Underlying Preferred
Shares] have been duly authorized; when delivered by the Company pursuant
to the Underwriting Agreement against payment of the consideration set
forth in the Underwriting Agreement, the Preferred Stock [Underlying
Preferred Shares] will be validly issued and fully paid and nonassessable;
and the issuance of the Preferred Stock [Underlying Preferred Shares] is
not subject to preemptive or other similar rights.
3
(d) The Shares [and Underlying Preferred Shares] conform in all material
respects to the description thereof contained in the Prospectus and the
Registration Statement.
(e) This Agreement has been duly authorized and validly executed and
delivered by the Company [and Disney].
(f) Assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, each Depositary Share will represent an
interest in [fraction] of a share of a validly issued, outstanding, fully
paid and nonassessable Underlying Preferred Share; and assuming due
execution and delivery of the Depositary Receipts by the Depositary
pursuant to the Deposit Agreement, the Depositary Receipts will entitle the
holders thereof to the benefits provided therein and in the Deposit
Agreement.
[(g) The Deposit Agreement has been duly authorized and, as of the
Closing Date, will have been duly executed and delivered by the Company.]
(h) The Company [and Disney each] is a validly existing corporation in
good standing under the laws of Delaware. The Company [and Disney each]
has full corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as
described in the Prospectus; and the Company [and Disney each] is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on the consolidated financial condition or earnings of the
Company [Disney] and its subsidiaries, considered as one enterprise.
(i) Except as contemplated in the Prospectus or reflected therein by the
filing of any amendment or supplement thereto or any Incorporated Document,
since the date of the most recent consolidated financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus there has not been any material adverse change in the
consolidated financial condition or earnings of the Company [Disney] and
its subsidiaries, considered as one enterprise.
4
(j) [Neither] the Company [nor Disney] is [not] in violation of its
certificate of incorporation or bylaws. The execution and delivery of this
Agreement and the Deposit Agreement by the Company [and Disney, as the case
may be], the issuance and sale of the Shares [the issuance and deposit of
the Underlying Preferred Shares in accordance with the Deposit Agreement]
[and the Guarantees] [and the issuance of the related Guarantees] and the
performance by the Company [and Disney] of its [their] obligations under
this Agreement and the Deposit Agreement will not conflict with or
constitute a breach of or a default (with the passage of time or otherwise)
under (A) the certificate of incorporation or bylaws of the Company [or
Disney], (B) subject to the Company's [or Disney's, as the case may be,]
compliance with any applicable covenants pertaining to its issuance of
Preferred Stock contained therein, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company [or Disney]
is a party or by which it may be bound, or to which any of the properties
or assets of the Company [or Disney] is subject, which breach or default
would, singly or in the aggregate, reasonably be expected to have a
material adverse effect on the consolidated financial condition or earnings
of the Company [Disney] and its subsidiaries, considered as one enterprise,
or (C) any applicable law, administrative regulation or administrative or
court decree, except for orders, permits and similar authorizations
required under or by the securities or Blue Sky laws of certain
jurisdictions, any securities exchange on which any of the Shares might be
listed. [As of the date of the Underwriting Agreement and the Closing
Date, Disney both immediately before and immediately after giving effect
to the delivery of the Guarantees, will be in compliance with the
requirements of any applicable covenants pertaining to its incurrence of
unsecured indebtedness contained in the agreements or instruments referred
to in clause (B) above.]
(k) To the best of the Company's [and Disney's] knowledge, the accountants
who have audited and reported upon the financial statements filed with the
Commission as part of the Registration Statement and the Prospectus are
independent accountants as required by the 1933 Act. The financial
statements included in the Registration Statement or Prospectus or
incorporated therein by reference fairly present the consolidated financial
position and results of operations of the Company [Disney] and its
subsidiaries at the respective dates and for the respective periods to
which they apply. Such financial statements have been prepared in
accordance
5
with generally accepted accounting principles consistently applied, except
as set forth in the Registration Statement and Prospectus.
(l) Each of [ ] (collectively the "Significant Subsidiaries") is a
validly existing corporation in good standing in the state of its
incorporation. Each of the Significant Subsidiaries has full corporate
power and authority to own, lease and operate its properties and to conduct
its business as presently conducted and as described in the prospectus; and
each of the Significant Subsidiaries is duly qualified as a foreign
corporation to transact business and is in good standing in each United
States jurisdiction in which such qualification is required whether by
reason of the ownership or leasing of property or the conduct of business,
except where a failure to so qualify would not have a material adverse
effect on the consolidated financial condition or earnings of the Company
[Disney] and its subsidiaries, considered as one enterprise.
(m) The Company [and Disney, each] has complied with, and is and will be
in compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
2. PUBLIC OFFERING. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after this Agreement has been entered into as in the
Manager's judgment is advisable. The terms of the public offering of the Shares
[Depositary Shares] have been provided by the Manager to the Company and are in
all material respects completely set forth in the Prospectus.
3. PURCHASE AND DELIVERY Except as otherwise provided in this Agreement,
payment for the Shares shall be made by wire transfer, of immediately available
funds, by the Underwriters to the order of the Company, at the time set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Preferred Stock [Depositary
Receipts], registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the date
of delivery, with any transfer taxes payable in connection with the sale of the
Shares to the Underwriters duly paid.
6
4. CONDITIONS TO CLOSING The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) OPINION OF COUNSEL TO COMPANY. On the Closing Date, the
Underwriters shall have received an opinion from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Company, dated as of the Closing Date and in
form and substance satisfactory to counsel for the Underwriters to the
effect that:
(i) The Company [Disney] and each of the Significant Subsidiaries is a
corporation validly existing and in good standing under the laws of its
state of incorporation.
(ii) The Company [and Disney each] has full corporate power and
corporate authority to enter into and perform its obligations under this
Agreement [and the Deposit Agreement, to issue and deliver the Underlying
Preferred Shares and to sell and deliver the Depositary Shares].
(iii) This Agreement has been duly authorized, executed and delivered by
the Company [and Disney].
(iv) The Shares [the Underlying Preferred Shares and the deposit of the
Underlying Preferred Shares in accordance with the Deposit Agreement] have
been duly authorized and, when issued and delivered by the Company pursuant
to this Agreement, the [Underlying] Preferred Stock will be validly issued
and fully paid and nonassessable.
[(v) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery by the Depositary) is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except that
such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (B) general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).]
(vi) No consent or approval of any United States governmental authority
or other United States person or United States entity is required in
connection with the issuance or sale of the Shares other than registration
7
thereof under the 1933 Act, and such registrations or qualifications as may
be necessary under the securities or Blue Sky laws of the various United
States jurisdictions in which the Shares are to be offered or sold.
[(vii) The Guarantees, when executed by Disney and issued to and paid for
by the purchasers thereof, will be valid and binding obligations of Disney
enforceable against Disney in accordance with their respective terms,
except that such enforceability may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally
and (B) general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law).]
(viii) The Registration Statement has become effective under the 1933 Act,
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated.
(ix) The execution and delivery of this Agreement and the Deposit
Agreement by the Company [and Disney], the issuance and sale of the Shares
[and issuance of the Guarantees] and the performance of this Agreement[,
and the Guarantees] by the Company [and Disney] will not conflict with or
constitute a breach of or a default (with the passage of time or otherwise)
under (A) the certificate of incorporation or bylaws of the Company [or
Disney], (B) any statute, law or regulation to which the Company [or
Disney] or any of its [respective] properties may be subject or (C) any
judgment, decree or order, known to such counsel, of any court or
government agency or authority entered in any proceeding to which the
Company [or Disney] was or is now a party or by which it is bound;
provided, that such counsel may state that (1) the opinion set forth in
clause (B) of this paragraph (ix) is limited to those United States
statutes, laws or regulations currently in effect which, in such counsel's
experience, are normally applicable to transactions of the type
contemplated by this Agreement, and (2) no opinion is expressed as to the
securities or Blue Sky laws of the various jurisdictions in which the
Shares are to be offered (3) no opinion is expressed with respect to such
clause (B) with respect to the Shares [and the related Guarantees] which
are indexed or linked to any foreign currency, composite currency,
commodity, equity index or similar index.
8
(x) The Registration Statement, as of the date it became effective, and
the Prospectus, as of the date of the Underwriting Agreement, appear on
their face to be appropriately responsive in all material respects to the
requirements of the 1933 Act, except that in each case such counsel need
not express an opinion as to (i) the Incorporated Documents, (ii) the
financial statements and schedules and other financial data included or
incorporated by reference therein or (iii) the Form T-1.
(xi) The statements in the Prospectus under the caption "Description of
the Preferred Stock" ["Description of the Depositary Shares"], insofar as
they purport to summarize certain provisions of documents specifically
referred to therein, are in all material respects accurate summaries of
such provisions.
(xii) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, stock option
agreements, employee benefit plans or the exercise of convertible
securities referred to in the Prospectus); all of the issued and
outstanding shares of the Common stock, par value $0. per share, of the
Company (the "Common Stock") have been duly authorized and validly issued
and are fully paid and nonassessable; the Shares [and the Underlying
Preferred Shares] have been duly authorized; when delivered by the Company
pursuant to the Underwriting Agreement against payment of the consideration
set forth in the Underwriting Agreement, the [Underlying] Preferred Shares
will be validly issued and fully paid and nonassessable; and the issuance
of the [Underlying] Preferred Shares is not subject to preemptive or other
similar rights.
[(xiii) Assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, each Share will represent an interest in
[fraction] of a share of a validly issued, outstanding, fully paid and
nonassessable Underlying Preferred Share; assuming due execution and
delivery of the Depositary Receipts by the Depositary pursuant to the
Deposit Agreement, the Depositary Receipts will entitle the holders thereof
to the benefits provided therein and in the Deposit Agreement.]
[(xiv) The Deposit Agreement has been duly authorized and, as of the
Closing Date, will have been duly executed and delivered by the Company.]
9
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel
employed by the Company, representatives of the independent public
accountants for the Company, representatives of the Underwriters and
counsel for the Underwriters, at which conferences the contents of the
Registration Statement and Prospectus and related matters were discussed
and, although such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus and
have not made any independent check or verification thereof, on the basis
of the foregoing, no facts have come to such counsel's attention that lead
them to believe that either the Registration Statement (excluding the
Incorporated Documents) at the time such Registration Statement became
effective (which, for the purposes of this paragraph, shall have the
meaning set forth in Rule 158(c) of the 1933 Act Regulations) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or the Prospectus (excluding the Incorporated Documents) as
of the date of the Underwriting Agreement contained an untrue statement of
a material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that such counsel need express no opinion with
respect to (i) the Incorporated Documents, (ii) the financial statements,
schedules and other financial data included or incorporated by reference in
the Registration Statement or the Prospectus or (iii) the Form T-1.
(b) OPINION OF COUNSEL EMPLOYED BY COMPANY. On the Closing Date, the
Underwriters shall have received an opinion from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior
Vice President-Assistant General Counsel or from other counsel employed by
the Company (provided that such counsel is a similarly senior officer of
the Company), dated as of the date hereof and in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) Except as set forth in the Prospectus (including the Incorporated
Documents), there is not pending or, to the best of such counsel's
knowledge, after reasonable inquiry, threatened any action, suit or
proceeding against the Company [Disney] or any of its subsidiaries before
or by any court or governmental agency or body, which is likely (to the
extent not
10
covered by insurance) to have a material adverse effect on the consolidated
financial condition or earnings of the Company [Disney] and its
subsidiaries, considered as one enterprise.
(ii) To the best of such counsel's knowledge, after reasonable inquiry,
there is no contract or document of a character required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement which is not described or filed as required.
(iii) To the best of such counsel's knowledge, after reasonable inquiry,
[neither] the Company [nor Disney] is [not] in violation of its Certificate
of Incorporation or Bylaws.
(iv) To the best of such counsel's knowledge, after reasonable inquiry,
(x) the execution and delivery, and (y) the performance, of this Agreement
[and the Deposit Agreement] will not conflict with or constitute a breach
of, or default (with the passage of time or otherwise) under, any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company [or Disney] is a party or by which it may
be bound, or to which any of the property or assets of the Company [Disney]
or any of its subsidiaries is subject.
(v) To the best of such counsel's knowledge, after reasonable inquiry,
the Shares [Underlying Preferred Shares, as the case may be,] when issued
and delivered as contemplated by the terms of the Underwriting Agreement
[and the Deposit Agreement], will be validly issued, fully paid and non-
assessable, and the issuance of such shares is not subject to any
preemptive or similar rights. The authorized capital stock of the Company
conforms with the statements in the Prospectus Supplement under the caption
"Capitalization."
(vi) The Incorporated Documents, as of the date of the Underwriting
Agreement, complied as to form in all material respects with the
requirements of the 1933 Act, except that in each case such counsel need
not express an opinion as to the financial statements and schedules and
other financial data included or incorporated by reference therein.
(vii) To the best of such counsel's knowledge, after reasonable inquiry,
there are no holders of securities of the Company with currently
exercisable registration rights to have any securities registered as part
of the
11
Registration Statement or included in the offering contemplated by this
Agreement.
In addition, such counsel shall state that nothing has come to such
counsel's attention that leads him to believe that either the Registration
Statement (including the Incorporated Documents) at the time such
Registration Statement became effective (which, for the purposes of this
paragraph, shall have the meaning set forth in Rule 158(c) of the 1933 Act
Regulations) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or the Prospectus (including the
Incorporated Documents) as of the date of the Underwriting Agreement
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that such counsel need express no opinion with
respect to the financial statements, schedules and other financial data
included or incorporated by reference in the Registration Statement or
Prospectus or with respect to the Form T-1.
(c) OPINION OF UNDERWRITERS' COUNSEL. On the Closing Date, the
Underwriters shall have received an opinion from counsel to the
Underwriters dated as of the Closing Date and in form and substance
satisfactory to the Underwriters.
(d) OFFICER'S CERTIFICATE. [(x)] On the Closing Date the Underwriters
shall have received a certificate signed by an officer of the Company,
dated the Closing Date, to the effect that (i) the representations and
warranties of the Company contained in Section 1. hereof are true and
correct in all material respects with the same force and effect as though
expressly made at and as of the date of such certificate, (ii) the Company
has complied with all agreements and satisfied all conditions required by
this Agreement [or the Deposit Agreement] on its part to be performed or
satisfied at or prior to the date of such certificate and (iii) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or, to the
best of such officer's knowledge, threatened by the Commission. The
Officers Certificate shall further state that except as contemplated in the
Prospectus or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document, at the Closing Date, there
shall not have
12
been, since the date of the most recent consolidated financial statements
of the Company included or incorporated by reference in the Prospectus, any
material adverse change in the consolidated financial condition or earnings
of the Company and its subsidiaries, considered as one enterprise [;
(y) On the Closing Date the Underwriters shall have received a
certificate signed by an officer of Disney, dated the Closing Date, to the
effect that (i) the representations and warranties of Disney contained in
Section 1(a) hereof (other than Section 1(a)(vii)) are true and correct in
all material respects with the same force and effect as though expressly
made at and as of the date of such certificate and (ii) Disney has complied
with all agreements and satisfied all conditions required by this Agreement
on its part to be performed or satisfied at or prior to the date of such
certificate. The Officers Certificate shall further state that except as
contemplated in the Prospectus or reflected therein by the filing of any
amendment or supplement thereto or any Incorporated Document, at the
Closing Date, there shall not have been, since the date of the most recent
consolidated financial statements of Disney included or incorporated by
reference in the Prospectus, any material adverse change in the
consolidated financial condition or earnings of Disney and its
subsidiaries, considered as one enterprise].
(e) COMFORT LETTER. On the date of the Underwriting Agreement, the
Underwriters shall have received a letter from the Company's [Disney's]
[and Capital Cities] independent certified public accountants, dated as of
the date of the Underwriting Agreement and in form and substance reasonably
satisfactory to the Underwriters. On the Closing Date, the Underwriters
shall have received a letter from such accountants, dated the Closing Date,
updating the foregoing letter[s] and in form and substance reasonably
acceptable to the Underwriters.
(f) OTHER DOCUMENTS. On the Closing Date, counsel to the Underwriters
shall have been furnished with such documents and opinions as such counsel
may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of the Shares [and the issuance of the
Underlying Preferred Shares] as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations and warranties or the fulfillment of any of the
conditions herein contained.
13
If any condition specified in this Section 4 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by any of
the Underwriters (as to itself only), except that the covenants set forth in
Section 5(f) hereof, the indemnity and contribution agreement set forth in
Sections 6, 7, 8 and 9 hereof and the provisions of Section 13 hereof shall
remain in effect.
5. COVENANTS OF THE COMPANY [AND DISNEY]. In further consideration of the
agreements of the Underwriters contained herein, the Company [and Disney,
jointly and severally] covenant as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Manager
promptly of (i) the effectiveness of any post-effective amendment to the
Registration Statement (other than a post-effective amendment relating
solely to an offering of securities other than the Preferred Stock [
Depositary Shares]), (ii) the transmittal to the Commission for filing of
any supplement to the Prospectus (other than a Pricing Supplement or a
supplement relating solely to an offering of securities other than the
Preferred Stock [Depositary Shares]), (iii) the receipt of any comments
from the Commission with respect to the Registration Statement or the
Prospectus (other than any comments relating solely to an offering of
securities other than the Preferred Stock [Depositary Shares]), (iv) any
request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional
information (other than any such request relating solely to an offering of
securities other than the Shares) and (v) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose. The Company will
make every reasonable effort to prevent the issuance of any such stop order
and, if any such stop order is issued, to obtain the lifting thereof at the
earliest possible time unless the Company shall, in its sole discretion,
determine that it is not in its best interest to do so.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. At or prior to the filing
thereof, the Company will give the Manager notice of its intention to file
any additional registration statement with respect to the registration of
additional shares of Preferred Stock [Depositary Shares] to be covered by
this Agreement, any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than a Pricing Supplement
or an amendment or supplement relating solely to an offering of securities
other than the Preferred Stock [Depositary Shares]), whether by
14
the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish the Underwriters with copies of any such
amendment or supplement or other documents promptly after the filing
thereof.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Underwriters one copy of a signed copy of, and
as many conformed copies of, the Registration Statement (as originally
filed) and of each amendment thereto (including the Incorporated Documents
and any exhibits filed therewith or incorporated by reference therein) as
the Manager may reasonably request. The Company will furnish to the
Underwriters as many copies of the Prospectus (as amended or supplemented)
as the Manager shall reasonably request so long as the Underwriters are
required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Shares.
(d) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES So long as the
Underwriters are required to deliver a Prospectus in connection with sales
or solicitations of offers to purchase the Shares, if any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Company, after consultation with counsel for the
Underwriters, to further amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the opinion
of counsel for the Company, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, prompt notice shall be given, and
confirmed in writing, to the Manager, and the Company will prepare and file
as soon as practicable an amendment or supplement to the Prospectus so that
the Prospectus, as amended or supplemented, will not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in light of the
circumstances existing at the time it is delivered to the Underwriters.
(e) COMPLIANCE WITH 1934 ACT; ACCOUNTANTS' CONSENTS. [(x)] The Company
will (i) comply, in a timely manner, with all applicable requirements under
the 1934 Act relating to the filing with the Commission of the Company's
reports pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act and, if
then applicable, of the Company's proxy statements pursuant
15
to Section 14(a) of the 1934 Act and (ii) use its best efforts to obtain
the written consent of the Company's [and Capital Cities'] independent
accountants as to the incorporation by reference in the Registration
Statement of the audited financial statements reported on by them and
contained in the Company's [and Capital Cities'] annual reports on Form 10-
K under the 1934 Act[; and
(y) Disney will (i) comply, in a timely manner, with all applicable
requirements under the 1934 Act relating to the filing with the Commission
of Disney's reports pursuant to Section 13(a), 13(c) or 15(d) of the 1934
Act and, if then applicable, of Disney's proxy statements pursuant to
Section 14(a) of the 1934 Act and (ii) use its best efforts to obtain the
written consent of Disney's independent accountants as to the incorporation
by reference in the Registration Statement of the audited financial
statements reported on by them and contained in Disney's annual reports on
Form 10-K under the 1934 Act.]
(f) EARNINGS STATEMENTS. The Company [Disney] will make generally
available to its security holders, in each case as soon as practicable but
in any event not later than 15 months after the Closing Date, a
consolidated earnings statement (which need not be audited) covering the
twelve-month period beginning after the latest of (i) the effective date of
the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective,
(iii) the Company's [Disney's] most recent annual report on Form 10-K filed
with the Commission prior to the Closing Date, which earnings statement
shall satisfy the provisions of Section 11(a) of the 1933 Act. The Company
[Disney] may elect to rely upon Rule 158 under the 1933 Act and may elect
to make such earnings statement available more frequently than once in any
period of twelve months.
(g) BLUE SKY QUALIFICATIONS. The Company will endeavor, in cooperation
with the Underwriters, to qualify the Preferred Stock [Depositary Shares]
for offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Manager may reasonably
designate, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Shares; PROVIDED, HOWEVER, that
the Company will promptly notify the Manager of any suspension or
termination of any such qualifications, and PROVIDED, FURTHER, that the
Company shall not be obligated to register or qualify as a foreign
16
corporation or take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject.
6. INDEMNIFICATION OF THE UNDERWRITERS. The Company [and Disney, jointly
and severally,] agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act as follows:
(a) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Manager), as incurred, insofar as such loss, liability, claim, damage or
expense arises out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading, or arises out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(b) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Manager), as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever insofar as such loss, liability, claim, damage or expense arises
out of any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company [and Disney]; and
(c) against any and all expense whatsoever (including, subject to the
limitations set forth in subsection (C) below, the reasonable fees and
disbursements of counsel chosen by the Manager), as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever, based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission;
17
PROVIDED, HOWEVER, that this indemnity shall not apply to any loss,
liability, claim, damage or expense (A) to the extent arising out of or
based upon any untrue statement or omission or alleged untrue statement or
omission made in reliance upon the Form T-1 under the 1939 Act filed as an
exhibit to the Registration Statement; or (B) to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission in
the Prospectus if such untrue statement or alleged untrue statement or
omission or alleged omission is corrected in all material respects in an
amendment or supplement to the Prospectus and if, having previously been
furnished by or on behalf of the Company with copies of the Prospectus, as
so amended or supplemented, such Underwriter thereafter failed to deliver
such Prospectus, as so amended or supplemented, prior to or concurrently
with the sale of the Shares to the person asserting such loss, liability,
claim, damage or expense who purchased the Shares which are the subject
thereof from such Underwriter; or (C) as to which such Underwriter may be
required to indemnify the Company [and Disney] pursuant to the provisions
of Section 7.
7. INDEMNIFICATION OF THE COMPANY [AND DISNEY]. Each Underwriter agrees to
indemnify and hold harmless the Company [, Disney and] its respective directors,
each of its respective officers who signed the Registration Statement, and each
person, if any, who controls the Company [or Disney] within the meaning of
Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 6 hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement or the
Prospectus in reliance upon and in conformity with written information furnished
to the Company [or Disney] by or on behalf of such Underwriter expressly for use
in the Registration Statement or the Prospectus.
8. GENERAL. In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any Underwriter or any person controlling such Underwriter, based upon the
Registration Statement or the Prospectus and with respect to which indemnity may
be sought against the Company [and Disney] pursuant to Section 6, such
Underwriter or controlling person shall promptly notify the Company [and Disney]
in writing, and the Company [or Disney] shall assume the defense thereof,
including the employment of counsel (such counsel to be reasonably acceptable to
such Underwriter) and payment of all expenses. Any such Underwriter or any such
controlling person shall have the right to employ separate counsel in any
18
such action, suit or proceeding and to participate in the defense thereof, but
the fees and expenses of such separate counsel shall be at the expense of such
Underwriter or such controlling person unless (A) the employment of such counsel
shall have been specifically authorized in writing by the Company [and Disney],
(B) the Company [and Disney] shall have failed to assume the defense and employ
counsel or (C) the named parties to any such action, suit or proceeding
(including any impleaded parties) shall include both such Underwriter or such
controlling person and the Company [or Disney], and such Underwriter or such
controlling person shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from, or additional to,
those available to the Company [or Disney] (in which case, if such Underwriter
or such controlling person notifies the Company [and Disney] in writing that it
elects to employ separate counsel at the expense of the Company [and Disney],
[neither] the Company [nor Disney] shall [not] have the right to assume the
defense of such action, suit or proceeding on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company [and Disney]
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters and such controlling persons, which firm
shall be designated in writing by the Manager on behalf of all of such
Underwriters and such controlling persons).
In case any action, suit or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against the Company [,
Disney], any of the Company's [or Disney's] directors or officers, or any person
controlling the Company [or Disney], with respect to which indemnity may be
sought against any Underwriter pursuant to Section 7, such Underwriter shall
have the rights and duties given to the Company [and Disney] by this Section 8,
and the Company [, Disney], the Company's [and Disney's] directors and officers
and any such controlling person shall have the rights and duties given to the
Underwriters by this Section 8.
9. CONTRIBUTION. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Sections 6 and 7
hereof is for any reason held to be unenforceable with respect to the
indemnified parties although applicable in accordance with its terms, the
Company [and Disney, on the one hand,] and each Underwriter [, on the other
hand,] shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the
19
nature contemplated by said indemnity agreement incurred by the Company and the
Underwriters, as incurred, in such proportion as is appropriate to reflect the
relative benefits received by the Company [and Disney] on the one hand and each
of the Underwriters participating in the offering that gave rise to such losses,
liabilities, claims, damages and expenses on the other hand from the offering of
such Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required pursuant to Section 8 hereof or pursuant to the last
sentence of this Section 9, then the Company [, Disney] and each Underwriter
shall contribute to such aggregate losses, liabilities, claims, damages and
expenses incurred by the Company [, Disney] and the Underwriters, as incurred,
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company [and Disney] on the one hand and each
Underwriter on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company [and Disney], on the one hand, and each Underwriter, on the other
hand, in connection with the offering of such Shares shall be deemed to be in
the same proportion as the total net proceeds from the sale of such Shares by
such Underwriter received by the Company (before deducting expenses) bear to the
total commissions or other compensation or remuneration received by such
Underwriter in respect thereof. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company [or Disney] or such Underwriter
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. If there is more
than one Underwriter in respect of a proceeding, each Underwriter's obligation
to contribute pursuant to this Section 9 shall be several and not joint, and
shall be in the proportion that the number of Shares that are the subject of
such proceeding and that were offered and sold through such Underwriter bears to
the total number of Shares offered. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares purchased by or
through it were sold exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any, who
controls an Underwriter within the meaning
20
of Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company [or Disney], each officer of the
Company [or Disney] who sign the Registration Statement, within the meaning of
Section 15 of the 1933 Act, shall have the same rights to contribution as the
Company [or Disney, as the case may be]. Any party entitled to contribution
pursuant to the first sentence of this Section 9 will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 9, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought,
from any other obligation it or they may have otherwise than under this Section
9; PROVIDED, HOWEVER, that such notice need not be given if such party entitled
to contribution hereunder has previously given notice pursuant to Section 8
hereof with respect to the same action, suit or proceeding.
10. TERMINATION. The Underwriters may terminate the Underwriting Agreement
immediately upon notice to the Company, at any time prior to the Closing Date,
if (i) there has been, since the date of the Underwriting Agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the consolidated financial condition or earnings
of the Company [Disney] and its subsidiaries, considered as one enterprise, (ii)
there has occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other calamity or
crisis, the effect of which is such as to make it, in the reasonable judgment of
the Manager, impracticable to market the Shares or to enforce contracts for the
sale of the Shares, (iii) if trading in any securities of the Company [or
Disney] has been suspended (other than pursuant to a request by the Company [or
Disney] with respect to an announcement by the Company [or Disney] of certain
information not constituting a material adverse change, since the date of the
Underwriting Agreement or the respective date as of which information is given
in the Registration Statement, in the consolidated financial condition or
earnings of the Company [Disney] and its subsidiaries, considered as one
enterprise), the effect of which is such as to make it, in the reasonable
judgment of such Underwriter, impracticable to market the Shares or to enforce
contracts for the sale of the Shares, (iv) if trading generally on the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities shall have been
required, by such exchange or by order of the Commission or any other
governmental authority, or if a
21
banking moratorium has been declared by either Federal or New York authorities.
11. DEFAULTING' UNDERWRITERS. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have
agreed to purchase on such date, and the aggregate number of Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of the Shares to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the number of Shares set forth opposite their respective names
above bears to the aggregate number of Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Shares and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Manager and the Company for
the purchase of such Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Company. In any such case, either the Manager or
the Company shall have the right to postpone the Closing Date but in no event
for longer then seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
12. MISCELLANEOUS. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK WITH RESPECT TO CONTRACTS MADE IN AND TO BE PERFORMED WHOLLY WITHIN THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
14. HEADINGS. The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
22
UNDERWRITING AGREEMENT
[ ]
DC Holdco, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the ("Underwriter")), and we understand that DC Holdco,
Inc., a Delaware corporation (the "Company") proposes to issue and sell
[number of shares] shares (the "Firm Shares") of its [title] Preferred Stock, $
par value, stated value $ per share (the "Preferred Stock") [
Depositary Shares ("the Depositary Shares"), to be issued under a Deposit
Agreement (the "Deposit Agreement") dated by and among the Company,
(as defined below) issued thereunder, ,as Depositary (the
"Depositary"), and the holders from time to time of the Depositary Receipts.
Each Depositary Share will represent [insert fraction] of a share of the
Company's [title] Preferred Stock, $ par value, $ stated value (the
"Underlying Preferred Shares"). The Underlying Preferred shares will, when
issued, be deposited by the Company against delivery of Depositary Receipts
("Depositary Receipts") to be issued by the Depositary under the Deposit
Agreement. Each Depositary Receipt will represent one or more Depositary
Shares].
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the number of shares of Preferred Stock
[DepositaryShares] set forth below opposite their names at a purchase price of $
per share [plus accrued dividends, if any, from __________, 199_) to the date
of payment and delivery(1)] (the "Offering Price")
Number of Firm
Name Shares to be Purchased
---- -------------------------
[Lead Underwriter] . . . . . . .
---------------------
(1) To be added only if transaction does not close flat.
[Insert syndicate list]. . . . .
----------------
----------------
----------------
The Underwriters will pay for the Preferred Stock [Depositary Shares]
upon delivery thereof at [office] at _____ a.m. (New York time) on ____________,
199__, or at such other time, not later than 5:00 p.m. (New York time) on
____________, 199__, as shall be designated by the Manager. The time and date
of such payment and delivery are hereinafter referred to as the Closing Date.
The Preferred Stock [Depositary Shares] shall have the terms set forth
in the Prospectus dated _________, 1995, the Prospectus Supplement dated
_________, 199_[, and the Term Sheet dated ________ 199_ ] including the
following:
Terms of Preferred Stock [Underlying Preferred Shares]
Annual Dividend:
Redemption Provisions:
Dividend Payment Dates:
Liquidation Preference: $
[Guaranty: The payment of dividends on, the redemption
price of, and the liquidation preference of
the Preferred Stock [Underlying Preferred
Shares] will be guaranteed by The ▇▇▇▇ Disney
Company (2)]
All provisions contained in the document entitled DC Holdco, Inc.
Underwriting Agreement Standard Provisions (Preferred Stock and Depositary
Shares)
--------------------
(2) To be included only if the Preferred Stock [Underlying Preferred Shares]
are to be guaranteed by The ▇▇▇▇ Disney Company.
2
dated ______________, 1995, a copy of which is attached hereto, are hereby
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby grants to the Underwriters the option to
purchase shares of Preferred Stock [Depositary Shares] (the "Option Shares"
and, together with the Firm Shares, the "Shares") at the Offering Price. The
option hereby granted will expire 30 days after the date hereof and may be
executed in whole or in part (but not more than once) only for the purpose of
covering overallotments which may be made in connection with the offering and
distributions of the Firm Shares upon written notice to the Company by the
Manager setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option shares, which shall be determined by the Manager but
shall not be later than seven full business days after the execise of such
option, nor in any event prior to the Closing Date for the Firm Shares. The
time and date of such payment and delivery shall hereinafter also be referred to
as the Closing Date. If the option is exercised as to all or any portion of the
Option Shares, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Shares being purchased
which the number of Firm Shares set forth above opposite the name of such
Underwriter bears to the total number of Firm Shares, subject to such
adjustments as the Manager in its discretion shall make to eliminate any sales
or purchases of fractional shares.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[LEAD UNDERWRITER]
[NAME OF CO-MANAGERS],
acting Severally on behalf of themselves and the several
Underwriters named herein
BY: [LEAD UNDERWRITER]
By:
-----------------------------------
3
Name:
Title:
Accepted:
DC HOLDCO, INC.
By:______________________
Name:
Title:
THE ▇▇▇▇ DISNEY COMPANY(3)
By:______________________
Name:
Title:
----------------------
(3) To be included only if the Preferred Stock [Underlying Preferred Shares]
are to be guaranteed by The ▇▇▇▇ Disney Company.
4