1
EXHIBIT 1.1
2,800,000 Shares
▇▇▇▇▇ ADVERTISING COMPANY
Class A Common Stock
UNDERWRITING AGREEMENT
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November __, 1996
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
As Representatives of the Several Underwriters
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇▇ Advertising Company, a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 2,200,000 shares of its
Class A Common Stock, $0.001 par value per share, to the several Underwriters
named in Schedule II hereto (the "Underwriters"), and the persons named in Part
A of Schedule I hereto (the "Selling Stockholders") propose to sell to the
several Underwriters an aggregate of 600,000 shares of such Class A Common
Stock of the Company. The Company and the Selling Stockholders are hereinafter
sometimes referred to as the "Sellers". The Company's Class A Common Stock,
$0.001 par value, is hereinafter referred to as the "Common Stock" and the
2,200,000 shares of Common Stock to be issued and sold to the Underwriters by
the Company and the 600,000 shares of Common Stock to be sold to the
Underwriters by the Selling Stockholders are hereinafter referred to as the
"Firm Shares". The Company and the Selling Stockholders listed in Part B of
Schedule I hereto also propose to sell to the Underwriters, upon the terms and
conditions set forth in Section 2 hereof, up to an additional 420,000 shares
(the
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"Additional Shares") of Common Stock. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares".
The Company and the Selling Stockholders wish to confirm as
follows their respective agreements with you (the "Representatives") and the
other several Underwriters on whose behalf you are acting, in connection with
the several purchases of the Shares by the Underwriters.
1. Registration Statement and Prospectus. The Company
has prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance in all material respects with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-3 under the Act (the "registration statement"), including a prospectus
subject to completion relating to the Shares. The term "Registration
Statement" as used in this Agreement means the registration statement
(including all financial schedules and exhibits), as amended at the time it
becomes effective, or, if the registration statement became effective prior to
the execution of this Agreement, as supplemented or amended prior to the
execution of this Agreement. If it is contemplated, at the time this Agreement
is executed, that a post-effective amendment to the registration statement will
be filed and must be declared effective before the offering of the Shares may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. The term
"Registration Statement" shall also include any registration statement relating
to the Shares that is filed pursuant to Rule 462(b) under the Act. The term
"Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the term
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"Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement as supplemented by the addition of the
Rule 430A information contained in the prospectus filed with the Commission
pursuant to Rule 424(b). The term "Prepricing Prospectus" as used in this
Agreement means the prospectus subject to completion in the form included in
the registration statement at the time of the initial filing of the
registration statement with the Commission, and as such prospectus shall have
been amended from time to time prior to the date of the Prospectus. Any
reference in this Agreement to the Registration Statement, Prospectus or any
Prepricing Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein as of the date of any such Registration
Statement, Prospectus or Prepricing Prospectus, as the case may be, and any
reference to any amendment or supplement to the Registration Statement,
Prospectus or any Prepricing Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") which, upon filing, are incorporated by
reference therein. As used herein, the term "Incorporated Documents" means
the documents which at the time are incorporated by reference in the
Registration Statement, Prospectus or any Prepricing Prospectus or any
amendment or supplement thereto.
2. Agreements to Sell and Purchase. Subject to such
adjustments in the allocation of Shares between Underwriters as you may
determine in your capacity as Representatives in order to avoid fractional
shares, the Company hereby agrees, subject to all the terms and conditions set
forth herein, to issue and sell to each Underwriter and, upon the basis of the
representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $______ per Share (the "purchase price
per share"), the number of Firm Shares which bears the same
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proportion to the aggregate number of Firm Shares to be issued and sold by the
Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule II hereto (or such number of Firm Shares increased as
set forth in Section 12 hereof) bears to the aggregate number of Firm Shares to
be sold by the Company and the Selling Stockholders.
Subject to such adjustments in the allocation of Shares
between Underwriters as you may determine in your capacity as Representatives
in order to avoid fractional shares, each Selling Stockholder agrees, subject
to all the terms and conditions set forth herein, to sell to each Underwriter
and, upon the basis of the representations, warranties and agreements of the
Company and the Selling Stockholders herein contained and subject to all the
terms and conditions set forth herein, each Underwriter, severally and not
jointly, agrees to purchase from each Selling Stockholder at the purchase price
per share that number of Firm Shares which bears the same proportion to the
number of Firm Shares set forth opposite the name of such Selling Stockholder
in Schedule I hereto as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule II hereto (or such number of Firm Shares
increased as set forth in Section 12 hereof) bears to the aggregate number of
Firm Shares to be sold by the Company and the Selling Stockholders.
The Company and the Selling Stockholders listed in Part B of
Schedule I hereto also agree, subject to all the terms and conditions set forth
herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the
Company and the Selling Stockholders listed in Part B of Schedule I hereto, at
the purchase price per share, pursuant to an option (the "over-allotment
option") which may be exercised at any time and from time to time prior to 9:00
P.M., New York City
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time, on the 30th day after the date of the Prospectus (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the New York Stock Exchange is open for trading), up to an aggregate of
___________ Additional Shares from the Company and up to an aggregate of
___________ Additional Shares from the Selling Stockholders listed in Part B of
Schedule I hereto (the maximum number of Additional Shares which each of them
agrees to sell upon the exercise by the Underwriters of the over-allotment
option is set forth opposite their respective names in Part B of Schedule I).
Additional Shares may be purchased only for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. The number
of Additional Shares which the Underwriters elect to purchase upon any exercise
of the over-allotment option shall be provided by the Company and by each
Selling Stockholder who has agreed to sell Additional Shares in proportion to
the respective maximum numbers of Additional Shares which the Company and each
such Selling Stockholder has agreed to sell. Upon any exercise of the
over-allotment option, each Underwriter, severally and not jointly, agrees to
purchase from each of the Company and each Selling Stockholder who has agreed
to sell Additional Shares the number of Additional Shares (subject to such
adjustments in the allocation of Shares between Underwriters as you may
determine in your capacity as Representatives in order to avoid fractional
shares) which bears the same proportion to the aggregate number of Additional
Shares to be sold by the Company and each Selling Stockholder who has agreed to
sell Additional Shares as the aggregate number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number of
Firm Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Firm Shares to be sold by the Company and the Selling Stockholders.
Certificates in transferable form for the Shares (including
any Additional Shares) which each of the Selling Stockholders agrees to sell
pursuant to this Agreement have been placed in custody with the Company (the
"Custodian")
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for delivery under this Agreement pursuant to a Custody Agreement and Power of
Attorney (the "Custody Agreement") executed by each of the Selling Stockholders
appointing ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇ as agents and
attorneys-in-fact (the "Attorneys-in-Fact"). Each Selling Stockholder agrees
that (i) the Shares represented by the certificates held in custody pursuant to
the Custody Agreement are subject to the interests of the Underwriters, the
Company and each other Selling Stockholder, (ii) the arrangements made by the
Selling Stockholders for such custody are, except as specifically provided in
the Custody Agreement, irrevocable, and (iii) the obligations of the Selling
Stockholders hereunder and under the Custody Agreement shall not be terminated
by any act of such Selling Stockholder or by operation of law, whether by the
death or incapacity of any Selling Stockholder or the occurrence of any other
event. If any Selling Stockholder shall die or be incapacitated or if any
other event shall occur before the delivery of the Shares hereunder,
certificates for the Shares of such Selling Stockholder shall be delivered to
the Underwriters by the Attorneys-in-Fact in accordance with the terms and
conditions of this Agreement and the Custody Agreement as if such death or
incapacity or other event had not occurred, regardless of whether or not the
Attorneys-in-Fact or any Underwriter shall have received notice of such death,
incapacity or other event. Each Attorney-in-Fact is authorized, on behalf of
each of the Selling Stockholders, to execute this Agreement and any other
documents necessary or desirable in connection with the sale of the Shares to
be sold hereunder by such Selling Stockholder, to make delivery of the
certificates for such Shares, to receive the proceeds of the sale of such
Shares, to give receipts for such proceeds, to pay therefrom any expenses to be
borne by such Selling Stockholder in connection with the sale and public
offering of such Shares, to distribute the balance thereof to such Selling
Stockholder, and to take such other action as may be necessary or desirable in
connection with the transactions
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contemplated by this Agreement. Each Attorney-in-Fact agrees to perform his
duties under the Custody Agreement.
3. Terms of Public Offering. The Sellers have been
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable and
initially to offer the Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor.
Delivery to the Underwriters of and payment for the Firm Shares shall be made
at the office of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
at 10:00 A.M., New York City time, on November __, 1996 (the "Closing Date").
The place of closing for the Firm Shares and the Closing Date may be varied by
agreement among you, the Company and the Attorneys-in-Fact.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the aforementioned
office of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. at such time on such date (the "Option Closing
Date"), which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor earlier than two nor later than five business
days after the giving of the notice hereinafter referred to, as shall be
specified in a written notice from you on behalf of the Underwriters to the
Company and the Attorneys-in-Fact, of the Underwriters' determination to
purchase a number, specified in such notice, of Additional Shares. The place
of closing for any Additional Shares and the Option Closing Date for such
Shares may be varied by agreement among you, the Company and the
Attorneys-in-Fact.
Certificates for the Firm Shares and for any Additional Shares
to be purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 9:30 A.M., New York City time, on
the
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second business day preceding the Closing Date or any Option Closing Date, as
the case may be. Such certificates shall be made available to you in New York
City for inspection and packaging not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date or the Option Closing Date,
as the case may be. The certificates evidencing the Firm Shares and any
Additional Shares to be purchased hereunder shall be delivered to you on the
Closing Date or the Option Closing Date, as the case may be, against payment of
the purchase price therefor in immediately available funds.
5. Agreements of the Company. The Company agrees with
the several Underwriters as follows:
(a) If, at the time this Agreement is executed
and delivered, it is necessary for the Registration Statement or a
post-effective amendment thereto to be declared effective before the offering
of the Shares may commence, the Company will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon as
possible and will advise you promptly and, if requested by you, will confirm
such advice in writing, when the Registration Statement or such post-effective
amendment has become effective.
(b) The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any request by
the Commission for amendment of or a supplement to the Registration Statement,
any Prepricing Prospectus or the Prospectus or for additional information; (ii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the period of
time referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event,
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which makes any statement of a material fact made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue or which requires
the making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material fact
required by the Act to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply in all material
respects with the Act or any state securities law specified in Section 5(g).
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will furnish to you, without
charge, four (4) signed copies (three (3) of which may be photocopies) of the
registration statement as originally filed with the Commission and of each
amendment thereto, including financial statements and all exhibits thereto, and
will also furnish to you, without charge, such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits and schedules, as you may reasonably request.
(d) The Company will not (i) file any amendment
to the Registration Statement or make any amendment or supplement to the
Prospectus (including the filing of any document which, upon filing, becomes an
Incorporated Document) of which you shall not previously have been advised or
to which you shall reasonably object after being so advised and (ii) so long
as, in the opinion of counsel for the Underwriters, a prospectus is required to
be delivered in connection with sales by any Underwriter or dealer, subject to
the preceding clause (i), file any information, documents or reports pursuant
to the Exchange Act without delivering a copy of such information, documents or
reports to you, as Representatives of the Underwriters, prior to or
concurrently with such filing.
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(e) Prior to the execution and delivery of this
Agreement, the Company has delivered to you, without charge, in such quantities
as you have requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions within the United
States in which the Shares are offered by the several Underwriters and by
dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Company.
(f) As soon after the execution and delivery of
this Agreement as possible and thereafter from time to time for such period as
in the opinion of counsel for the Underwriters a prospectus is required by the
Act to be delivered in connection with sales by any Underwriter or dealer, the
Company will expeditiously deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or supplement
thereto) as you may reasonably request. The Company consents to the use of the
Prospectus (and of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions within the United States in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering and sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. If during such period of
time any event shall occur that in the judgment of the Company or in the
opinion of counsel for the Underwriters is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement or
amend the Prospectus to comply with the Act or any state securities law
specified in Section 5(g), the Company will forthwith prepare and, subject to
the provisions of paragraph (d) above, file with the Commission
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an appropriate supplement or amendment thereto, and will expeditiously furnish
to the Underwriters and dealers designated by you as Representatives for the
Underwriters a reasonable number of copies thereof. Notwithstanding anything
herein to the contrary, after the expiration of nine months after the effective
date of the Registration Statement, the cost of preparing, delivering and
furnishing to the Underwriters any such amended or supplemented prospectus
shall be borne by the Underwriters. In the event that the Company and you, as
Representatives of the several Underwriters, agree that the Prospectus should
be amended or supplemented, the Company, if reasonably requested by you and not
prohibited by law, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offering and sale by the several Underwriters
and by dealers under the securities or Blue Sky laws of such jurisdictions
within the United States as you may designate and will file such consents to
service of process or other documents necessary or appropriate in order to
effect such registration or qualification; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to service of
process in suits, other than those arising out of the offering or sale of the
Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to
its security holders an earnings statement, which need not be audited, covering
a twelve-month period commencing after the effective date of the Registration
Statement (as defined in Rule 158 under the Act) and ending not later than 15
months thereafter, as soon as practicable after the end of such period, which
earnings statement shall satisfy the provisions of Section 11(a) of the Act.
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(i) During the period of five years hereafter,
the Company will furnish to you promptly after they become available, a copy of
each report of the Company mailed to stockholders or filed with the Commission
(unless the Company has, in good faith, requested confidential treatment with
respect to such filing), and, during the period which is 18 months after the
date hereof, such other information concerning the Company as you may
reasonably request.
(j) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof (otherwise than
pursuant to the second paragraph of Section 12 hereof or by you pursuant to
Section 12 or Section 13 hereof) or if this Agreement shall be terminated by
the Representatives on behalf of the Underwriters because of any failure or
refusal on the part of the Company or the Selling Stockholders to comply in any
material respect with the terms of this Agreement, the Company agrees to
reimburse the Representatives for all out-of-pocket expenses (including
reasonable fees and expenses of counsel for the Underwriters) incurred by you
in connection herewith. If this Agreement shall terminate or be terminated
after execution pursuant to the second paragraph of Section 12 hereof or by you
pursuant to Section 12 or Section 13 hereof, the Company and the Selling
Stockholders shall not then be under any liability to reimburse the
Underwriters, including the Representatives, for any out of pocket expenses
incurred by them in connection herewith, except as provided in Section 11
hereof.
(k) The Company will apply the net proceeds from
the sale of the Shares to be sold by it hereunder substantially in accordance
with the description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the
Company will timely file the Prospectus pursuant to Rule
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424(b) under the Act and will advise you of the time of such filing.
(m) Except as provided in this Agreement, the
Company will not sell, offer to sell, solicit an offer to buy, contract to
sell, grant any option or warrant to purchase, or otherwise transfer or dispose
of any Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, for a period of 90 days after the date of the
Prospectus, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.; provided,
however, that the Company may issue shares of Common Stock (i) as consideration
for the acquisition of additional outdoor advertising or logo sign assets
provided that the persons receiving such shares are bound by lock-up provisions
substantially similar to those referred to in clause (n) below and (ii)
pursuant to the Company's 1996 Equity Incentive Plan.
(n) The Company has furnished or will furnish to
you "lock-up" letters, in substantially the form agreed to by you, signed by
each of its current officers and directors and each of its stockholders
reasonably designated by you.
(o) Except as stated in this Agreement and in the
Prepricing Prospectus and Prospectus, the Company has not taken, nor will it
take, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have
the Common Stock approved for inclusion, subject to notice of issuance, on the
Nasdaq National Market concurrently with the effectiveness of the Registration
Statement.
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6. Agreements of the Selling Stockholders. Each of the
Selling Stockholders agrees with the several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to
the extent necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time.
(b) On the Closing Date or the Option Closing
Date, as the case may be, all stock transfer or other taxes (other than income
taxes and excise taxes measured by income) that are required to be paid in
connection with the sale or transfer hereunder to the Underwriters by such
Selling Stockholder of the Shares to be sold by such Selling Stockholder to the
several Underwriters hereunder on such date will have been paid or provided for
by such Selling Stockholders.
(c) Such Selling Stockholder will do or perform
all things reasonably required to be done or performed by the Selling
Stockholder prior to the Closing Date or any Option Closing Date, as the case
may be, to satisfy all conditions precedent to the delivery of the Shares
pursuant to this Agreement.
(d) Such Selling Stockholder has executed or will
execute a "lock-up" letter as provided in Section 5(n) above.
(e) Except as stated in this Agreement and in the
Prepricing Prospectus and the Prospectus, such Selling Stockholder will not
take, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
(f) To the extent such Selling Stockholder is an
executive officer or director of the Company, such Selling Stockholder will
advise you promptly, and if
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requested by you, will confirm such advice in writing, within the period of
time referred to in Section 5(f) hereof, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations or of any change in information relating to the Company
or any new information relating to the Company or relating to any matter stated
in the Prospectus or any amendment or supplement thereto which comes to the
attention of such Selling Stockholder that suggests that any statement made in
the Registration Statement or the Prospectus (as then amended or supplemented,
if amended or supplemented) is or may be untrue in any material respect or that
the Registration Statement or Prospectus (as then amended or supplemented, if
amended or supplemented) omits or may omit to state a material fact or a fact
necessary to be stated therein in order to make the statements therein not
misleading in any material respect, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented, if amended or supplemented) in
order to comply with the Act or any other law.
(g) Such Selling Stockholder will advise you
promptly, and if requested by you, will confirm such advice in writing, within
the period of time referred to in Section 5(f) hereof, of any change in
information relating to such Selling Stockholder that suggests that any
statement made in the Registration Statement or the Prospectus (as then amended
or supplemented, if amended or supplemented) is or may be untrue in any
material respect or that the Registration Statement or Prospectus (as then
amended or supplemented, if amended or supplemented) omits or may omit to state
a material fact or a fact necessary to be stated therein in order to make the
statements therein not misleading in any material respect, or of the necessity
to amend or supplement the Prospectus (as then amended or supplemented, if
amended or supplemented) in order to comply with the Act or any other law.
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(h) Such Selling Stockholder shall provide you
with a United States Treasury Department Form W-9 properly completed or
executed or other evidence satisfactory to you that such Selling Stockholder is
not subject to backup withholding.
7. Representations and Warranties of the Company. The
Company represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part
of the registration statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424 under the Act, complied
when so filed in all material respects with the provisions of the Act. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The Registration Statement in the form in
which it became or becomes effective and also in such form as it may be when
any post-effective amendment thereto shall become effective, complied or will
comply in all material respects with the provisions of the Act and did not or
will not at any such times contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus and any
supplement or amendment thereto when filed with the Commission under Rule
424(b) under the Act complied or will comply in all material respects with the
provisions of the Act and did not or will not at any such times contain an
untrue statement of material fact or omit to state a material fact necessary in
order to make the statements, in light of the circumstances in which they are
made, not misleading, except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement or the
Prospectus made in conformity with information relating to any Underwriter
furnished to the Company in writing by or on behalf of any Underwriter through
you expressly for use therein.
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(c) All the outstanding shares of Common Stock of
the Company (including the Shares to be sold by the Selling Stockholders) have
been duly authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the Shares to be issued and sold
by the Company have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof, will
be validly issued, fully paid and nonassessable and free of any preemptive or
similar rights; and the capital stock of the Company conforms in all material
respects to the description thereof in the Registration Statement and the
Prospectus.
(d) The Company is a corporation duly organized
and validly existing in good standing under the laws of the State of Delaware
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered or qualified to conduct
its business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify or be in good standing does not, individually or in the aggregate, have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole (a "Material Adverse
Effect").
(e) All the Company's consolidated subsidiaries
(collectively, the "Subsidiaries") are listed in Exhibit A hereto. Each
Subsidiary is a corporation or partnership duly organized, validly existing and
in good standing in the jurisdiction of its organization, with full corporate
or partnership power and authority, as the case may be, to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly registered or qualified
to conduct its business and is in good standing in
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18
each jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or results
of operations of such Subsidiary; all the outstanding shares of capital stock
or other equity interest of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable, and, except as set forth
in the Registration Statement, are owned by the Company directly, or indirectly
through one of the other Subsidiaries and, except for the liens under, as the
case may be, the Existing Credit Agreement, the Existing Note Indenture and the
New Credit Agreement (each as defined in the Registration Statement), as
described in the Registration Statement and the Prospectus, free and clear of
any lien, adverse claim, security interest, equity or other encumbrance except
for any such lien, adverse claim, security interest equity or other encumbrance
which would not reasonably be expected, individually or in the aggregate, to
materially impair the value of such shares or other equity interests.
(f) There are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened, against
the Company or any of the Subsidiaries, or to which the Company or any of the
Subsidiaries, or to which any of their respective properties is subject, that
are required to be described in the Registration Statement or the Prospectus
but are not so described as required; and all pending legal or governmental
proceedings to which the Company or any of the Subsidiaries is a party or that
affect any of their respective properties including ordinary routine litigation
incidental to the business, that are not described in the Prospectus and as to
which an adverse determination is not remote, would not, if determined
adversely to the Company or any of the Subsidiaries, individually or in the
aggregate, result in a Material Adverse Effect.
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19
(g) There are no agreements, contracts,
indentures, leases or other instruments that are required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that are not described or filed as required by the
Act.
(h) Neither the Company nor any of the
Subsidiaries is in violation (A) of its certificate or articles of
incorporation or by-laws, or other organizational documents, or (B) of any law,
ordinance, administrative or governmental rule or regulation applicable to the
Company or any of the Subsidiaries, including, without limitation, (i) any
foreign, Federal, state or local law or regulation relating to the protection
of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) any Federal or
state law relating to discrimination in the hiring, promotion or pay of
employees or any applicable federal or state wages and hours laws, or (iii) any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder (collectively, "ERISA"), or of any decree of
any court or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries except for, in the case of the foregoing clause (B),
such violations which would not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(i) Neither the Company nor any of the
Subsidiaries is in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound, except for such defaults
which would not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
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20
(j) Neither the issuance and sale of the Shares,
the execution, delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby (including,
without limitation, the inclusion in the Registration Statement of the Shares
to be sold by the Selling Stockholders) (A) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required for the registration of the Shares
under the Act, compliance with the securities or Blue Sky laws of various
jurisdictions and compliance with the Conduct Rules of the National Association
of Securities Dealers, Inc. ("NASD"), all of which (except such compliance with
the Conduct Rules of the NASD) have been or will be effected in accordance with
this Agreement) or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws, or other organizational documents, of the Company or
any of the Subsidiaries or (B) conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, any agreement, indenture,
lease or other instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may be
bound, or violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Company or any of the
Subsidiaries or any of their respective properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to the terms of any
agreement or instrument to which any of them is a party or by which any of them
may be bound or to which any of the property or assets of any of them is
subject.
(k) KPMG Peat Marwick LLP, who have certified or
shall certify the financial statements of the Company and Outdoor East, L.P.
included in the Registration Statement and the Prospectus (or any amendment or
supplement
- 20 -
21
thereto) are independent public accountants as required by the Act. McGrail,
Merkel, ▇▇▇▇▇ & Associates, who have certified or shall certify the financial
statements of FKM Advertising Co., Inc. included in the Registration Statement
and the Prospectus (or any amendment or supplement thereto) are independent
public accountants as required by the Act
(l) The historical and pro forma financial
statements, together with related schedules and notes, included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), comply as to form in all material respects with the requirements of
the Act; such historical financial statements, together with related schedules
and notes, present fairly the consolidated financial position, results of
operations, cash flows and changes in financial position of the entities to
which they relate on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; such pro forma financial
statements, together with related notes, have been prepared on a basis
consistent with such historical statements, except for pro forma adjustments
specified therein, and give effect to assumptions made on a reasonable basis
and present fairly the historical and proposed transactions contemplated by the
Registration Statement and the Prospectus; and the other financial and
statistical information and data included in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), historical and pro forma,
are accurately presented in all material respects and prepared on a basis
consistent in all material respects with such financial statements and the
books and records of the entities to which to which they relate.
(m) The execution and delivery of, and the
performance by the Company of its obligations under, this Agreement have been
duly and validly authorized by the
- 21 -
22
Company, and this Agreement has been duly executed and delivered by the Company
and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws.
(n) Except as disclosed in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), neither the Company nor any of the Subsidiaries has incurred any
liability or obligation, direct or contingent, or entered into any transaction,
not in the ordinary course of business, that is material to the Company and the
Subsidiaries, taken as a whole, and there has not been any change in the
capital stock, or material increase in the short-term debt or long-term debt,
of the Company or any of the Subsidiaries, or any material adverse change, or
any development involving, or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or other),
business, properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole.
(o) Each of the Company and the Subsidiaries has
good and marketable title to all property (real and personal) described in the
Prospectus as being owned by it, free and clear of all liens, claims, security
interests or other encumbrances except such as are described in the
Registration Statement and the Prospectus or in a document filed as an exhibit
to the Registration Statement or which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or
materially impair the value of such property to the Company or such Subsidiary,
as the case may be, and all the property described in the Prospectus as being
held under lease or sublease by each of the Company and the Subsidiaries is
held by it under valid, subsisting and enforceable leases or
- 22 -
23
subleases with such exceptions as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or materially impair
the value of such leasehold estate to the Company or such Subsidiary, as the
case may be, and such leases and subleases are in full force and effect;
neither the Company nor any of the Subsidiaries has any notice of any claim of
any sort that has been asserted by anyone adverse to the rights of the Company
or any of the Subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or any of the
Subsidiaries to the continued possession of the leased or subleased premises
under any such lease or sublease, which claim could reasonably be expected
individually or in the aggregate to have a Material Adverse Effect.
(p) The Company has not distributed and, prior to
the later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Shares, will not distribute any offering material in
connection with the offering and sale of the Shares other than the Registration
Statement, the Prepricing Prospectus, the Prospectus or other materials, if
any, permitted by the Act.
(q) The Company and each of the Subsidiaries has
such permits, licenses, franchises and authorizations including, without
limitation, under any applicable Environmental Laws, of governmental or
regulatory authorities ("permits") as are necessary to own its respective
properties and to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the
Prospectus and with such exceptions as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; the
Company and each of the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time or both would allow, revocation
or termination thereof or results in any other material impairment of the
rights of the holder of any
- 23 -
24
such permit, subject in each case to such qualification as may be set forth in
the Prospectus; and, except as described in the Prospectus, none of such
permits contains any restriction that is materially burdensome to the Company
or any of the Subsidiaries.
(r) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(s) To the Company's knowledge, neither the
Company nor any of its Subsidiaries nor any employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any Subsidiary
or received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(t) The Company and each of the Subsidiaries have
filed all tax returns required to be filed, which returns are complete and
correct in all material respects, and neither the Company nor any Subsidiary is
in default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto, except for such failures to
file or defaults in payment of a character not required to be disclosed in the
Prospectus and which would not reasonably be expected to have a Material
Adverse Effect.
- 24 -
25
(u) No holder of any security of the Company has
any right to require registration of shares of Common Stock or any other
security of the Company because of the filing of the Registration Statement or
consummation of the transactions contemplated by this Agreement.
(v) The Company has not taken, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(w) The Company and the Subsidiaries own or
possess all patents, trademarks, trademark registrations, service marks,
service ▇▇▇▇ registrations, trade names, copyrights, licenses, inventions,
trade secrets and rights described in the Prospectus as being owned by them or
any of them or necessary for the conduct of their respective businesses, and
the Company is not aware of any claim to the contrary or any challenge by any
other person to the rights of the Company and the Subsidiaries with respect to
the foregoing.
(x) The Incorporated Documents heretofore filed,
when they were filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material respects with
the requirements of the Exchange Act and the rules and regulations thereunder,
and any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirements of the Exchange Act and
the rules and regulations thereunder; no such document when it was filed (or,
if an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; and no such further document, when it is filed,
will contain an untrue statement of a
- 25 -
26
material fact or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(y) The Company is not now, and after sale of the
Shares to be sold by it hereunder and application of the net proceeds from such
sale as described in the Prospectus under the caption "Use of Proceeds" will
not be, an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(z) The Company has complied with all provisions
of Florida Statutes, Section 517.075, relating to issuers doing business with
Cuba.
(aa) Except as disclosed in the Registration
Statement and the Prospectus, there are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, the Company or
any Subsidiary thereof.
(bb) No labor problem exists with the employees of
the Company or any of the Subsidiaries or, to the knowledge of the Company, is
imminent that, in either case, could reasonably be expected individually or in
the aggregate to result in any Material Adverse Effect.
(cc) The Company and each of the Subsidiaries
maintain insurance of the types and in the amounts that are reasonable for the
businesses operated by them, including, but not limited to, insurance covering
real and personal property owned or leased by the Company and the Subsidiaries
against theft, damage, destruction, acts of vandalism and liability, all of
which insurance is in full force and effect.
8. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder represents and warrants to each
Underwriter that:
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27
(a) Such Selling Stockholder now has, and on the
Closing Date and any Option Closing Date will have, valid and marketable title
to the Shares to be sold by such Selling Stockholder, free and clear of any
lien, claim, security interest or other encumbrance, including, without
limitation, any restriction on transfer, other than as provided is the Custody
Agreement or under any Federal or State securities laws.
(b) Such Selling Stockholder now has, and on the
Closing Date and any Option Closing Date will have, full legal right, power and
authorization, and any approval required by law (except such as may be required
under the Act or such as may be required under state securities or Blue Sky
laws governing the purchase and distribution of the Shares and compliance with
the Conduct Rules of the NASD), to sell, assign transfer and deliver such
Shares in the manner provided in this Agreement, and upon delivery of and
payment for such Shares hereunder, the several Underwriters will acquire valid
and marketable title to such Shares free and clear of any lien, claim, security
interest, or other encumbrance.
(c) This Agreement and the Custody Agreement have
been duly authorized, executed and delivered by or on behalf of such Selling
Stockholder and the Custody Agreement is the valid and binding agreements of
such Selling Stockholder enforceable against such Selling Stockholder in
accordance with its terms.
(d) Neither the execution and delivery of this
Agreement or the Custody Agreement by or on behalf of such Selling Stockholder
nor the consummation of the transactions herein or therein contemplated by or
on behalf of such Selling Stockholder requires any consent, approval,
authorization or order of, or filing or registration with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required under the Act or such as may be
required under state securities or Blue Sky laws governing the purchase and
- 27 -
28
distribution of the Shares and compliance with the Conduct Rules of the NASD)
or conflicts or will conflict with or constitutes or will constitute a breach
of, or default under, or violates or will violate, any agreement, indenture or
other instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is or may be bound or to which any of such Selling
Stockholder's property or assets is subject, or any statute, law, rule,
regulation, ruling, judgment, injunction, order or decree applicable to such
Selling Stockholder or to any property or assets of such Selling Stockholder.
(e) The Registration Statement and the
Prospectus, insofar as they relate to such Selling Stockholder, do not and will
not as of the date it became effective in the case of the Registration
Statement and within the period of time referred to in Section 5(f) in the case
of the Prospectus, contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(f) To the extent such Selling Stockholder is an
executive officer or director of the Company, such Selling Stockholder does not
have any knowledge or any reason to believe that the Registration Statement or
the Prospectus (or any amendment or supplement thereto) contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(g) The representations and warranties of such
Selling Stockholder in the Custody Agreement are true and correct.
(h) Such Selling Stockholder has not taken,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares, except for the
- 28 -
29
lock-up arrangements described in the Prospectus and the sales contemplated
herein.
9. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each of you and each other Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses arise out of
or are based upon any untrue statement or omission or alleged untrue statement
or omission which has been made therein or omitted therefrom and in conformity
with the information furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use in connection therewith; provided,
however, that the indemnification contained in this paragraph (a) with respect
to any Prepricing Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) on account of
any such loss, claim, damage, liability or expense arising from the sale of the
Shares by such Underwriter to any person if a copy of the Prospectus shall not
have been delivered or sent to such person within the time required by the Act
and the regulations thereunder, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
Prepricing Prospectus was corrected in the Prospectus, provided that the
Company has delivered the Prospectus to such Underwriter in requisite quantity
on a timely basis to permit such delivery or sending. The foregoing indemnity
- 29 -
30
agreement shall be in addition to any liability which the Company or any
Selling Stockholder may otherwise have.
(b) If any action, suit or proceeding shall be
brought against any Underwriter or any person controlling any Underwriter in
respect of which indemnity may be sought against the Company, such Underwriter
or such controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter
or such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties have
failed to assume the defense and employ counsel, or (iii) the named parties to
any such action, suit or proceeding (including any impleaded parties) include
both such Underwriter or such controlling person and the indemnifying parties
and such Underwriter or such controlling person shall have been advised in
writing by its counsel that representation of such indemnified party and any
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the indemnifying party 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 is understood, however, that the
indemnifying parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time
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31
for all such Underwriters and controlling persons not having actual or
potential differing interests with you or among themselves, which firm shall be
designated in writing by ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., and that all such fees and expenses
shall be reimbursed as they are incurred. The indemnifying parties shall not
be liable for any settlement of any such action, suit or proceeding effected
without their written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the indemnifying parties agree to indemnify and hold harmless any
Underwriter, to the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Selling Stockholder agrees, severally
and not jointly, to indemnify and hold harmless each of you and each other
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, the
Company, its directors, its officers who sign the Registration Statement, and
any person who controls the Company within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with respect to the
information furnished in writing by or on behalf of such Selling Stockholder
expressly for use in the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto provided,
however, that (i) such Selling Stockholder shall not be liable in any such
case, whether for indemnification pursuant to this Section 9(c) or contribution
pursuant to Section 9(e), if any such untrue statement or alleged untrue
statement or omission or alleged omission was contained in or omitted from the
Registration Statement or any Prospectus used after such time as the Company
shall have been advised by or on behalf of such Selling Stockholder of such
untrue statement or alleged untrue statement or omission or alleged omission,
and
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32
(ii) the obligations and liability of such Selling Stockholder, whether with
respect to indemnification pursuant to this Section 9(c) or contribution
pursuant to Section 9(e), shall not in any event exceed in the aggregate the
amount of net proceeds received by such Selling Stockholder from the sale of
the Shares sold by such Selling Stockholder to the Underwriters pursuant to
this Agreement. If any action, suit or proceeding shall be brought against any
Underwriter, any such controlling person of any Underwriter, the Company, any
of its directors, any such officer, or any such controlling person of the
Company, based on the Registration Statement, the Prospectus or any Prepricing
Prospectus or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Selling Stockholder pursuant to this
paragraph (c), such Selling Stockholder shall have the rights and duties given
to the Company by paragraph (b) above (except that if the Company shall have
assumed the defense thereof such Selling Stockholder shall not be required to
do so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such Selling
Stockholder's expense), and each Underwriter, each such controlling person of
any Underwriter, the Company, its directors, any such officer, and any such
controlling person of the Company shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement shall
be in addition to any liability which any Selling Stockholder may otherwise
have.
(d) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement, each Selling Stockholder, and any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Selling Stockholders to each Underwriter,
but only with respect to information furnished in writing by or on behalf of
such Underwriter through you expressly for use in the
- 32 -
33
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, any
Selling Stockholder, or any such controlling person based on the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (d), such Underwriter shall have the
rights and duties given to the Company by paragraph (b) above (except that if
the Company shall have assumed the defense thereof such Underwriter shall not
be required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
such Underwriter's expense), and the Company, its directors, any such officer,
the Selling Stockholder, and any such controlling person shall have the rights
and duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which any Underwriter
may otherwise have.
(e) If the indemnification provided for in this
Section 9 is unavailable to an indemnified party under paragraphs (a), (c) or
(d) hereof in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand from the offering of the Shares, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other hand in connection with the statements or
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34
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Stockholders bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus;
provided that, in the event that the Underwriters shall have purchased any
Additional Shares hereunder, any determination of the relative benefits
received by the Company, the Selling Stockholders or the Underwriters from the
offering of the Shares shall include the net proceeds (before deducting
expenses) received by the Company and the Selling Stockholders, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
Prospectus. The relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand 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 the Selling
Stockholders on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. In determining the benefits to,
or the fault of, any particular Selling Stockholder, the benefits to and fault
of each other Selling Stockholder and the Company shall not be taken into
account.
(f) The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by a pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or
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35
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (e) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (e) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. 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 of the
Shares underwritten by it and distributed to the public 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule II
hereto (or such numbers of Firm Shares increased as set forth in Section 12
hereof) and not joint. The obligations of the Selling Stockholders to
contribute pursuant to this Section 9 are several and not joint and no Selling
Stockholder shall in any event be required to contribute any amount which is in
excess of the amount by which the total net proceeds received by such Selling
Stockholder from the sale of the Shares sold by such Selling Stockholder to the
Underwriters pursuant to this Agreement exceeds the amounts that such Selling
Stockholder has otherwise been required to pay by reason of the statements or
omissions which result in such obligation to contribute.
(g) No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of which any
indemnified party is or
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36
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to indemnification or
contribution under this Section 9 shall be paid by the indemnifying party to
the indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 9 and the representations and warranties of the Company and the Selling
Stockholders set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, the Company, its
directors or officers or the Selling Stockholders or any person controlling the
Company, (ii) acceptance of any Shares and payment therefor hereunder, and
(iii) any termination of this Agreement. A successor to any Underwriter or any
person controlling any Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 9.
10. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) If, at the time this Agreement is executed
and delivered, it is necessary for the registration statement or a
post-effective amendment thereto to be declared effective before the offering
of the Shares may commence, the registration statement or such post-effective
amendment shall have become effective not later than 5:30 P.M. (or in the case
of a Registration Statement filed pursuant to Rule 462(b) under the Act, not
later than 10:00 P.M.), New York City time, on the date hereof, or at such
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37
later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission.
(b) Subsequent to the effective date of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition (financial or
other), business, properties, net worth, or results of operations of the
Company or the Subsidiaries not contemplated by the Prospectus, which in your
reasonable opinion, as Representatives of the several Underwriters, would
materially, adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Company or any officer or director of
the Company or any Selling Stockholder which makes any material statement made
in the Prospectus untrue in any material respect or which, in the opinion of
the Company and its counsel or you, as Representatives of the several
Underwriters and counsel to the Underwriters, requires the making of any
addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially adversely affect the
market for the Shares.
(c) You shall have received on the Closing Date,
an opinion of ▇▇▇▇▇▇ & Dodge LLP, counsel for the Company dated the Closing
Date and addressed to you, as Representatives of the several Underwriters, to
the effect that:
(i) The Company is a corporation duly
incorporated and validly existing in good standing
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38
under the laws of the State of Delaware with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
(and any amendment or supplement thereto);
(ii) The Shares to be issued and sold to
the Underwriters by the Company hereunder (A) have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and (B) free of any preemptive,
or to the best knowledge of such counsel, similar rights that entitle
or will entitle any person to acquire any shares of Common Stock upon
the issuance thereof by the Company;
(iii) The form of certificates for the
Shares conforms to the requirements of the Delaware General
Corporation Law;
(iv) The Registration Statement has
become effective under the Act and, 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 are pending before or contemplated by the Commission; and any
required filing of the Prospectus pursuant to Rule 424(b) has been
made in accordance with Rule 424(b);
(v) (A) The Company has the corporate
power and authority to enter into this Agreement and to issue, sell
and deliver the Shares to be sold by it to the Underwriters as
provided herein, and (B) this Agreement has been duly authorized,
executed and delivered by the Company;
(vi) Neither the offer, sale or delivery
of the Shares, the execution, delivery or performance of this
Agreement, compliance by the Company with the provisions hereof, nor
consummation by the Company of
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39
the transactions contemplated hereby constitutes or will constitute a
violation or breach of, or a default under, the certificate of
incorporation or bylaws of the Company or any of the Subsidiaries or
any agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties is bound and that is an exhibit
to the Registration Statement, or will result in the creation or
imposition of any lien, charge or encumbrance pursuant to any such
agreement, indenture, lease or other instrument upon any property or
assets of the Company or any of the Subsidiaries, nor will any such
action result in any violation of any existing law, regulation, ruling
(assuming compliance with all applicable state securities and Blue Sky
laws), judgment, injunction, order or decree known to such counsel, to
be applicable to the Company, the Subsidiaries or any of their
respective properties;
(vii) No consent, approval, authorization
or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental body,
agency, or official is required on the part of the Company (except as
have been obtained under the Act and the Exchange Act or such as may
be required under state securities or Blue Sky laws governing the
purchase and distribution of the Shares or such as may be required
under the rules of the NASD) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement;
(viii) Each of the Registration Statement,
as of its effective date, and the Prospectus, as of its date, (except
for the financial statements and the notes thereto and the schedules
and other financial and statistical data included therein, as to which
such counsel need not express any opinion) comply as to form in all
material respects with the requirements of the Act; and
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40
(ix) The Incorporated Documents (other
than the financial statements (including the notes thereto) and
schedules and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel need
express no opinion), when filed, or as amended or supplemented,
complied as to form in all material respects with the requirements of
the Exchange Act.
In rendering their opinion as aforesaid, counsel may rely upon
an opinion or opinions, each dated the Closing Date, of other counsel retained
by them or the Company as to laws of any jurisdiction other than the United
States or the State of Delaware, provided that (1) each such local counsel is
acceptable to the Representatives, (2) such reliance is expressly authorized by
each opinion so relied upon and a copy of each such opinion is delivered to the
Representatives and is, in form and substance reasonably satisfactory to them
and their counsel, and (3) counsel shall state in their opinion that they
believe that they and the Underwriters are justified in relying thereon.
In addition to the matters set forth above, such opinion shall
also contain a statement to the effect that, although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof (including
a review and discussion of the contents of all Incorporated Documents), and
nothing has come to the attention of such counsel that has caused it to believe
(i) that the Registration Statement (including the
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41
Incorporated Documents), and any amendment thereto, at the time it became
effective, 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 (ii) that the Prospectus (including the
Incorporated Documents), or any amendment or supplement to the Prospectus, as
of its respective date, and as of the Closing Date or the Option Closing Date,
as the case may be, contained any untrue statement of a material fact or
omitted 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 (it being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the schedules and
other financial and statistical data included or incorporated by reference in
the Registration Statement or the Prospectus).
(d) You shall have received on the Closing Date,
an opinion of Kean, Miller, Hawthorne, ▇'▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
counsel to the Company and the Selling Stockholders, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters to the effect
that:
(i) The Company is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify does not have,
individually or in the aggregate, a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries taken as a
whole;
(ii) Each of the Subsidiaries is a
corporation or partnership duly organized and validly existing in good
standing under the laws of the jurisdiction of its organization, with
full corporate or partnership power and authority, as the case may be,
to own, lease, and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus (and any
amendment or
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42
supplement thereto); and all the outstanding shares of capital stock
or other equity interests of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable, and
are owned by the Company, except as disclosed in the Registration
Statement and the Prospectus, directly, or indirectly through one of
the other Subsidiaries free and clear of any perfected security
interest, or, to the best knowledge of such counsel after reasonable
inquiry, any other security interest, lien, adverse claim, equity or
other encumbrance;
(iii) The authorized and outstanding
capital stock of the Company is as set forth under the caption
"Capitalization" in the Prospectus; and the authorized capital stock
of the Company conforms in all material respects as to legal matters
to the description thereof contained in the Prospectus under the
caption "Description of Capital Stock";
(iv) All the shares of capital stock of
the Company outstanding prior to the issuance of the Shares to be
issued and sold by the Company hereunder (including the Shares to be
sold by the Selling Stockholders), have been duly authorized and
validly issued, and are fully paid and nonassessable and free of any
pre-emptive or to the best knowledge of such counsel, similar rights;
(v) To the best knowledge of such
counsel (A) other than as described or contemplated in the Prospectus
(or any supplement thereto), there are no legal or governmental
proceedings pending or threatened against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or
any of their property, is subject, which are required to be described
in the Registration Statement or Prospectus (or any amendment or
supplement thereto) and (B) there are no agreements, contracts,
indentures, leases or other instruments, that are
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43
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or to be filed as
an exhibit to the Registration Statement that are not described or
filed as required, as the case may be;
(vi) This Agreement and the Custody
Agreement have each been duly executed and delivered by or on behalf
of each of the Selling Stockholders and are valid and binding
agreements of each Selling Stockholder enforceable against each
Selling Stockholder in accordance with their terms, except as
enforcement of rights to indemnity and contribution hereunder may be
limited by Federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of
each Selling Stockholder's obligations hereunder and thereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(vii) To the knowledge of such counsel,
each Selling Stockholder has full legal right, power and
authorization, and any approval required by law, to sell, assign,
transfer and deliver good and marketable title to the Shares which
such Selling Stockholder has agreed to sell pursuant to this
Agreement;
(viii) The execution and delivery of this
Agreement and the Custody Agreement by the Selling Stockholders and
the consummation of the transactions contemplated hereby and thereby
will not conflict with, violate, result in a breach of or constitute a
default under the terms or provisions of any agreement, indenture,
mortgage or other instrument known to such counsel to which any
Selling Stockholder is a party or by which any of them or any of their
assets or property is bound, or any court order or decree or any law,
rule, or regulation applicable to any Selling
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44
Stockholder or to any of the property or assets of any Selling
Stockholder; and
(ix) Upon delivery of the Shares by the
Selling Stockholders pursuant to this Agreement and payment therefor
as contemplated herein, and assuming that the Underwriters shall have
purchased such Shares in good faith without notice of any adverse
claim, the Underwriters will acquire good and marketable title to such
Shares free and clear of any lien, claim, security interest, or other
encumbrance, restriction on transfer or other defect in title.
In addition to the matters set forth above, such opinion shall
also contain a statement to the effect that, although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof(including a
review and discussion of the contents of all Incorporated Documents), and
nothing has come to the attention of such counsel that has caused it to believe
(i) that the Registration Statement (including the Incorporated Documents), and
any amendment thereto, at the time it became effective, 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
(ii) that the Prospectus (including the Incorporated Documents), or any
amendment or supplement to the Prospectus, as of its respective date, and as of
the Closing Date or the Option Closing Date, as the case may be, contained any
untrue statement of a material fact or omitted 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 (it being understood
that such counsel need express no opinion with respect to the financial
statements and the notes thereto and the
- 44 -
45
schedules and other financial and statistical data included or incorporated by
reference in the Registration Statement or the Prospectus).
(e) You shall have received on the Closing Date,
an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, Esq., general counsel of the Company,
dated the Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Company and each of the
Subsidiaries has full corporate power and authority, and all necessary
governmental authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all governmental
regulatory officials and bodies (except where the failure so to have
any such authorizations, approvals, orders, licenses, certificates,
franchises or permits, individually or in the aggregate, would not
have a material adverse effect on the business, properties, operations
or financial condition of the Company and the Subsidiaries taken as a
whole), to own their respective properties and to conduct their
respective businesses as now being conducted, as described in the
Prospectus;
(ii) To the best of his knowledge, other
than as described or contemplated in the Prospectus (or any supplement
thereto), there are no legal or governmental proceedings pending or
threatened against the Company or any of the Subsidiaries, or to which
the Company or any of the Subsidiaries, or any of their property, is
subject, which are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto);
(iii) To the bests of his knowledge, there
are no agreements, contracts, indentures, leases or other instruments,
that are required to be described in the Registration Statement or the
Prospectus (or any
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46
amendment or supplement thereto) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required, as
the case may be;
(iv) Neither the Company nor any of the
Subsidiaries (A) is in violation of its respective certificate or
articles of incorporation or bylaws, or other organizational
documents, (B) to the best knowledge of such counsel after reasonable
inquiry, is in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note or other
evidence of indebtedness, except as may be disclosed in the Prospectus
or (C) is in violation any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of
the Subsidiaries or of any decree of any court or governmental agency
or body having jurisdiction over the Company or any of the
Subsidiaries which default or violation in the case of either clause
(ii) or (iii), either individually or in the aggregate, would be
reasonably likely to have a Material Adverse Effect;
(v) Except as described in the
Prospectus, there are no outstanding options, warrants or other rights
calling for the issuance of, and such counsel does not know of any
commitment, plan or arrangement to issue, any shares of capital stock
of the Company or any security convertible into or exchangeable or
exercisable for capital stock of the Company;
(vi) Except as described in the
Prospectus, there is no holder of any security of the Company or any
other person who has the right, contractual or otherwise, to cause the
Company to sell or otherwise issue to them, or to permit them to
underwrite the sale of, the Shares or the right to have any Common
Stock or other securities of the Company included in the registration
statement or the right, as
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47
a result of the filing of the registration statement, to require
registration under the Act of any shares of Common Stock or other
securities of the Company; and
(vii) The statements in the Prospectus
under the captions "Risk Factors -- Regulation of Outdoor Advertising"
and "Business -- Regulation", insofar as such statements constitute a
summary of regulatory matters relating to the outdoor advertising
industry, fairly describe the regulatory matters relating to such
industry.
In addition to the matters set forth above, such
opinion shall also contain a statement to the effect that nothing has come to
the attention of such counsel that has caused it to believe (i) that the
Registration Statement (including the Incorporated Documents), and any
amendment thereto, at the time it became effective, 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
(ii) that the Prospectus (including the Incorporated Documents),or any
amendment or supplement to the Prospectus, as of its respective date, and as of
the Closing Date or the Option Closing Date, as the case may be, contained any
untrue statement of a material fact or omitted 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 (it being understood
that such counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other financial and
statistical data included or incorporated by reference in the Registration
Statement or the Prospectus).
(f) You shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, with respect to the matters referred to in clauses (ii) (with
respect to paragraph (A) only), (iv), (v) (with respect to paragraph
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48
(B) only) and (viii) of the foregoing paragraph (c) and clause (ix) of the
foregoing paragraph (d) and such other related matters as you may request.
In addition to the matters set forth above, such opinion shall
also contain a statement to the effect that, although such counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof (including
a review and discussion of the contents of all Incorporated Documents), and
nothing has come to the attention of such counsel that has caused it to believe
(i) that the Registration Statement (including the Incorporated Documents), and
any amendment thereto, at the time it became effective, 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
(ii) that the Prospectus (including the Incorporated Documents), any amendment
or supplement to the Prospectus, as of its respective date, and as of the
Closing Date or the Option Closing Date, as the case may be, contained any
untrue statement of a material fact or omitted 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 (it being understood
that such counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other financial and
statistical data included or incorporated by reference in the Registration
Statement or the Prospectus).
(g) You shall have received letters addressed to
you, as Representatives of the several Underwriters, and dated the date hereof
and the Closing Date from (i) KPMG Peat Marwick LLP and (ii) McGrail, Merkel,
▇▇▇▇▇ & Associates, each independent certified public
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49
accountants, substantially in the forms heretofore approved by you.
(h)(i) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other
than in the ordinary course of business) from that set forth or contemplated in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and
the Subsidiaries taken as a whole; (iv) the Company and the Subsidiaries shall
not have any liabilities or obligations, direct or contingent (whether or not
in the ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); and (v)
all the representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date, and you shall
have received a certificate, dated the Closing Date and signed by the chief
executive officer and the chief financial officer of the Company (or such other
officers as are acceptable to you), to the effect set forth in this Section
10(h) and in Section 10(i) hereof.
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50
(i) The Company shall not have failed at or prior
to the Closing Date to have performed or complied with any of its agreements
herein contained and required to be performed or complied with by it hereunder
at or prior to the Closing Date in any material respect.
(j) All the representations and warranties of the
Selling Stockholders contained in this Agreement shall be true and correct in
all material respects on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by or on behalf of the Selling
Stockholders to the effect set forth in this Section 10(j) and in Section 10(k)
hereof.
(k) The Selling Stockholders shall not have
failed at or prior to the Closing Date to have performed or complied with any
of their agreements herein contained and required to be performed or complied
with by them hereunder at or prior to the Closing Date in any material respect.
(l) The Shares shall have been listed or approved
for inclusion upon notice of issuance on the Nasdaq National Market.
(m) The Sellers shall have furnished or caused to
be furnished to you such further certificates and documents as you shall have
reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the
Company or any Attorney-in-Fact or any Selling Stockholder and delivered to
you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company, the
Selling Stockholders or the particular Selling Stockholder,
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51
as the case may be, to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 10, except
that, if any Option Closing Date is other than the Closing Date, and you so
request, the certificates, opinions and letters referred to in paragraphs (c)
through (j) shall be dated the applicable Option Closing Date and the opinions
called for by paragraphs (c), (d), (e) and (f) shall be revised to reflect the
sale of Additional Shares.
11. Expenses. The Company agrees to pay the following
costs and expenses and all other costs and expenses incident to the performance
by it of its obligations hereunder: (i) the preparation, printing or
reproduction, and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
registration statement, each Prepricing Prospectus, the Prospectus, and all
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the original issuance and sale of
the Shares; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda, the Master Agreement Among
Underwriters and dealer contracts; (v) the registration of the Shares under the
Exchange Act and the listing of the Shares on the Nasdaq National Market; (vi)
the registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including
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52
the reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the
preliminary and supplemental Blue Sky Memoranda and such registration and
qualification); (vii) the filing fees in connection with any filings required
to be made with the NASD; (viii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares (excluding any such expenses incurred by
the Underwriters for their representatives); and (ix) the fees and expenses of
the Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company and the Selling Stockholders. Except as
provided by this Section 11 or Section 5(j) hereof, the Underwriters will pay
all of their own costs and expenses, including fees of their counsel, taxes on
resales of the Shares by them and any advertising expenses in connection with
any offers they make.
12. Effective Date of Agreement. This Agreement shall
become effective: (i) upon the execution and delivery hereof by the parties
hereto; or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the Registration Statement or such
post-effective amendment has been released by the Commission. Until such time
as this Agreement shall have become effective, it may be terminated by the
Company, by notifying you, or by you, as Representatives of the several
Underwriters, by notifying the Company and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares
- 52 -
53
which the Underwriters are obligated to purchase on the Closing Date, each
non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule II
hereto bears to the aggregate number of Firm Shares set forth opposite the
names of all non-defaulting Underwriters or in such other proportion as you may
specify in accordance with Section 20 of the Master Agreement Among
Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., to purchase the Shares which such defaulting
Underwriter or Underwriters are obligated, but fail or refuse, to purchase. If
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they are obligated to purchase on the Closing Date and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Company for the purchase of such Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the Company are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or 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 such
default of any such Underwriter under this Agreement. The term "Underwriter"
as used in this Agreement includes, for all purposes of this Agreement, any
party not listed in Schedule II hereto who, with your approval and the approval
of the Company, purchases Shares which a defaulting Underwriter is obligated,
but fails or refuses, to purchase.
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54
Any notice under this Section 12 may be given by telegram,
telecopy or telephone but, if by telephone, shall be subsequently confirmed in
writing.
13. Termination of Agreement. This Agreement shall be
subject to termination in your absolute discretion, without liability on the
part of any Underwriter to the Company or any Selling Stockholder, by notice to
the Company, if prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to the Additional Shares), as
the case may be, (i) trading in securities generally on the New York Stock
Exchange, American Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
New York State authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis
or material adverse change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is such as to
make it, in your reasonable judgment, impracticable or inadvisable to commence
or continue the offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the
resale of the Shares by the Underwriters. Notice of such termination may be
given to the Company by telegram, telecopy or telephone and, if by telephone,
shall be subsequently confirmed in writing.
14. Information Furnished by the Underwriters. The
statements set forth in the last paragraph on the cover page, the stabilization
and Rule 10b-6A legends on the inside cover page, and the statements in the
first and third paragraphs under the caption "Underwriting" in any Prepricing
Prospectus and in the Prospectus, constitute the only information furnished by
or on behalf of the Underwriters through you as such information is referred to
in Sections 7(b) and 9 hereof.
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55
15. Miscellaneous. Except as otherwise provided in
Sections 5, 12 and 13 hereof, notice given pursuant to any provision of this
Agreement shall be in writing and shall be delivered (i) if to the Company, at
the office of the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, General Counsel; or (ii) if to the
Selling Stockholders, at Kean, Miller, Hawthorne, ▇'▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P., Attention: ▇▇▇ ▇▇▇▇▇▇, or (iii) if to you, as Representatives of the
several Underwriters, care of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Selling Stockholders, the Company, its directors
and officers, and the other controlling persons referred to in Section 9 hereof
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns"
as used in this Agreement shall include a purchaser from any Underwriter of any
of the Shares in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement 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 within the State of New
York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument.
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56
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours,
▇▇▇▇▇ ADVERTISING COMPANY
By:
---------------------------
Name:
----------------------
Title:
---------------------
Each of the Selling
Stockholders named in
Schedule I hereto
By:
-----------------------------
Attorney-in-Fact
By:
-----------------------------
Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇. ▇▇▇▇▇ & SONS INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
As Representatives of the Several Underwriters
By: ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
-----------------------------
Name:
----------------------
Title: Managing Director
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57
SCHEDULE I
▇▇▇▇▇ ADVERTISING COMPANY
Part A - Firm Shares
Number of
Selling Stockholders Firm Shares
-------------------- -----------
The ▇▇▇▇▇▇ Family Limited Partnership . . . . . . . .
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III . . . . . . . . . . . . . . . .
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ . . . . . . . . . . . . . . . .
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . .
▇▇▇▇ ▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇▇ ▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. . . . . . . . . . . . . . . . .
▇▇▇▇▇▇ ▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . .
Part B - Additional Shares
Number of
Selling Stockholders Firm Shares
-------------------- -----------
The ▇▇▇▇▇▇ Family Limited Partnership . . . . . . . .
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III . . . . . . . . . . . . . . . .
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ . . . . . . . . . . . . . . . .
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . .
▇▇▇▇ ▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇▇ ▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. . . . . . . . . . . . . . . . .
▇▇▇▇▇▇ ▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . .
58
SCHEDULE II
▇▇▇▇▇ ADVERTISING COMPANY
Number of Number of
Underwriter Firm Shares Underwriter Firm Shares
----------- ----------- ----------- -----------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Alex. ▇▇▇▇▇ & Sons Incorporated
Prudential Securities
Incorporated
------------------
Total
==================
59
EXHIBIT A
Subsidiaries of ▇▇▇▇▇ Advertising Company