EXHIBIT 1.1
$200,000,000
UNIVERSAL OUTDOOR, INC.
[__]% Senior Subordinated Notes due 2006
FORM OF
UNDERWRITING AGREEMENT
October [__], 1996
UNDERWRITING AGREEMENT
October [ ], 1996
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BT SECURITIES CORPORATION
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Universal Outdoor, Inc., a corporation organized and existing under
the laws of Illinois (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to you (the "Underwriters")
$200,000,000 aggregate principal amount of its [___]% Senior Subordinated Notes
due 2006 (the "Securities"), to be issued pursuant to an indenture dated as of
October [___], 1996 (the "Indenture") between the Company and United States
Trust Company of New York, as trustee (the "Trustee").
The Securities are more fully described in the Registration Statement
referred to below and in the Indenture, a copy of which has been filed as an
Exhibit to such Registration Statement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agree with, you that:
(a) A registration statement on Form S-1 (File No. 333-12427)
with respect to the Securities has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission. Copies of such registration statement, including any amendments
thereto, the preliminary
prospectuses (meeting the requirements of the Rules and Regulations) contained
therein and the exhibits, financial statements and schedules, as finally amended
and revised, have heretofore been delivered by the Company to you. Such
registration statement, together with any registration statement filed by the
Company pursuant to Rule 462(b) of the Act, herein referred to as the
"Registration Statement," which shall be deemed to include all information
omitted therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below, has become effective under the Act and no post-effective
amendment to the Registration Statement has been filed as of the date of this
Agreement. "Prospectus" means (A) the form of prospectus first filed with the
Commission pursuant to Rule 424(b) or (B) the last preliminary prospectus
included in the Registration Statement filed prior to the time it becomes
effective or filed pursuant to Rule 424(a) under the Act that is delivered by
the Company to the Underwriters for delivery to purchasers of the Securities,
together with the term sheet or abbreviated term sheet filed with the Commission
pursuant to Rule 424(b)(7) under the Act. Each preliminary prospectus included
in the Registration Statement prior to the time it becomes effective is herein
referred to as a "Preliminary Prospectus."
(b) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Illinois, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement. Each of the subsidiaries
of the Company (collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to own or
lease its properties and conduct its business as described in the Registration
Statement. The Subsidiaries are the only subsidiaries, direct or indirect, of
the Company. The Company and each of the Subsidiaries are duly qualified to
transact business in all jurisdictions in which the conduct of their business
requires such qualification. The outstanding shares of capital stock of each of
the Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by the Company or another Subsidiary free and
clear of all liens, encumbrances and equities and claims,
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except for the pledge of the issued and outstanding common stock of each
Subsidiary pursuant to the Amended and Restated Acquisition Credit Facility and
the Amended and Restated Revolving Credit Facility (the "Credit Facility"), each
among the Company, LaSalle National Bank and Bankers Trust Company
(collectively, the "Existing Stock Pledges"); and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligations into shares of capital stock or ownership interests in
the Subsidiaries are outstanding.
(c) The outstanding shares of common stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable.
Neither the filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any rights, other
than those which have been waived or satisfied, for or relating to the
registration of any securities of the Company.
(d) The information set forth under the caption "Capitalization"
in the Prospectus is true and correct. All of the Securities conform to the
description thereof contained in the Registration Statement. The form of
certificates for the Securities conforms to the corporate law of the
jurisdiction of the Company's incorporation.
(e) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Securities nor instituted proceedings for that purpose. The Registration
Statement contains, and the Prospectus and any amendments or supplements thereto
will contain, all statements which are required to be stated therein by, and
will conform, to the requirements of the Act and the Rules and Regulations and
with the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder (the "Trust Indenture Act"). The Registration Statement and any
amendment thereto do not contain, and will not contain, any untrue statement of
a material fact and do not omit, and will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments and supplements thereto do not
contain, and will not contain, any untrue statement of mate-
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rial fact; and do not omit, and will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
any Underwriter, specifically for use in the preparation thereof.
(f) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set forth in the
Registration Statement, present fairly the financial position and the results of
operations and cash flows of the Company and the consolidated Subsidiaries, at
the indicated dates and for the indicated periods. Such financial statements
and related schedules have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods involved,
except as disclosed therein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The summary financial
and statistical data included in the Registration Statement presents fairly the
information shown therein and such data has been compiled on a basis consistent
with the financial statements presented therein and the books and records of the
Company. The pro forma financial statements and other pro forma financial
information included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(g) Price Waterhouse LLP, who have certified certain of the
financial statements filed with the Commission as part of the Registration
Statement, are independent public accountants as required by the Act and the
Rules and Regulations.
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(h) Except as set forth in the Registration Statement, there is
neither (i) any action, suit, claim or proceeding pending or, to the knowledge
of the Company, threatened against the Company or any of the Subsidiaries before
any court or administrative agency or otherwise which, if determined adversely
to the Company or any of its Subsidiaries, might result in, nor (ii) any
legislation, statute, regulation, rule or ordinance to the knowledge of the
Company proposed or pending before any legislative body or administrative
agency, which, if enacted or promulgated, might result in, any material adverse
change in the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
of the Subsidiaries taken as a whole or to prevent the consummation of the
transactions contemplated hereby,
(i) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the financial statements
(or as described in the Registration Statement) hereinabove described, subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration
Statement) or which are not material in amount. The Company and the
Subsidiaries occupy their leased properties or properties subject to easement
under valid and binding leases or easements, respectively.
(j) The Company and the Subsidiaries have filed all Federal,
state, local and foreign income tax returns which have been required to be filed
and have paid all taxes indicated by said returns and all assessments received
by them or any of them to the extent that such taxes have become due and are not
being contested in good faith. All tax liabilities have been adequately
provided for in the financial statements of the Company.
(k) Since the respective dates as of which information is given
in the Registration Statement, as it may be amended or supplemented, there has
not been any material adverse change or any development involving a prospective
material adverse change in or affecting the earnings, business, management,
properties, assets (including for these purposes the assets of the
Memphis/Tunica Sellers (as defined in the Prospectus) to be sold pursuant to the
Option Agreement (as defined below)
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as if they were owned by the Company or any of its Subsidiaries), rights,
operations, condition (financial or otherwise), or prospects of the Company and
its Subsidiaries taken as a whole, whether or not occurring in the ordinary
course of business, and there has not been any material transaction entered into
or any material transaction that is probable of being entered into by the
Company or the Subsidiaries, other than transactions in the ordinary course of
business and changes and transactions described in the Registration Statement,
as it may be amended or supplemented. The Company and the Subsidiaries have no
material contingent obligations which are not disclosed in the Company's
financial statements which are included in the Registration Statement.
(l) Neither the Company nor any of the Subsidiaries is or, with
the giving of notice or lapse of time or both, will be, in violation of or in
default under its Articles of Incorporation or By-Laws as presently in effect or
under any agreement, lease, contract, indenture or other instrument or
obligation (including, but not limited to, the Credit Facility or the indenture
with respect to the Company's 11% Senior Notes due 2003 (the "Existing
Indenture")) to which it is a party or by which it, or any of its properties, is
bound and which default is of material significance in respect of the condition,
financial or otherwise of the Company and its Subsidiaries taken as a whole or
the business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the Subsidiaries taken
as a whole. The execution and delivery of this Agreement and the Indenture and
the consummation of the transactions herein contemplated and the fulfillment of
the terms hereof will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company or any
Subsidiary is a party (including, but not limited to, the Credit Facility or the
Existing Indenture), or of the Articles of Incorporation or By-laws of the
Company as presently in effect or any Subsidiary or any order, rule or
regulation applicable to the Company or any Subsidiary of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction.
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(m) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the Indenture and the consummation of the
transactions herein contemplated (except such additional steps as may be
required by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD") or such additional steps as may be necessary to qualify the
Securities for public offering by the Underwriters under state securities or
Blue Sky laws) has been obtained or made and is in full force and effect.
(n) The Company and each of the Subsidiaries hold all material
licenses, consents, authorizations, approvals, orders, certificates and permits
(collectively, "Licenses") of and from, and have made all declarations and
filings with and satisfied all eligibility and other similar requirements
imposed by, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, in each case
as required for the conduct of the business in which it is engaged, and each
such License is in full force and effect, except to the extent that the failure
to obtain any such License or to make any such declaration or filing or satisfy
any such requirement would not have a material adverse effect on the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries, taken
as a whole.
(o) The Company and its Subsidiaries are in compliance with all
applicable Federal, state and local laws and regulations relating to (i) zoning,
land use, protection of the environment, human health and safety or hazardous or
toxic substances, wastes, pollutants or contaminants and (ii) employee or
occupational safety, discrimination in hiring, promotion or pay of employees,
employee hours and wages or employee benefits, except where such noncompliance
would not, singly or in the aggregate, have a material adverse effect on the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole.
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(p) Neither the Company nor any of the Subsidiaries has
infringed any patents, patent rights, trade names, trademarks or copyrights,
which infringement is material to the business of the Company and the
Subsidiaries taken as a whole. The Company knows of no material infringement by
others of patents, patent rights, trade names, trademarks or copyrights owned by
or licensed to the Company.
(q) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 (the "1940 Act") and the rules and regulations of the Commission
thereunder.
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar industries.
(t) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (A) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (B) Sections 412
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or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(u) The Option and Asset Purchase Agreement, dated September 12,
1996, between the Company and the Memphis/Tunica Sellers (the "Option
Agreement") has been duly authorized, executed and delivered by the parties
thereto and constitutes a valid and binding agreement of the parties thereto,
enforceable against the parties thereto in accordance with its terms, except to
the extent that enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general principles of
equity.
(v) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported or incorporated by reference in
the Prospectus, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate,
in a form acceptable to the Department.
(w) The Securities have been duly and validly authorized by the
Company and the Securities, when the Securities are authenticated by the Trustee
and the Securities are issued, sold and delivered in accordance with this
Agreement and the Indenture, will have been duly and validly executed,
authenticated, issued and delivered and will constitute valid and binding
obliga-
9
tions of the Company, enforceable against the Company, in accordance with their
terms and entitled to the benefits provided by the Indenture, except to the
extent that enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of equity.
(x) The Indenture conforms to the description thereof contained
in the Registration Statement and the Prospectus, has been duly and validly
authorized and, when executed and delivered by the Company and the Trustee and
qualified under the Trust Indenture Act, will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) general
principles of equity.
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of
the representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, you agree to purchase from
the Company, at a purchase price of [___]% of the principal amount thereof, plus
accrued interest, if any, from October [__], 1996 to the Closing Date
hereinafter referred to, $200,000,000 principal amount of the Securities.
Delivery of and payment of the purchase price for the Securities shall
be made in your offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other location as may be mutually acceptable. Such delivery and payment shall
be made at 10:00 a.m., New York time, on the third business day following the
date the Registration Statement becomes effective, or, if the Company has
elected to rely upon Rule 430A of the Regulations, the third business day after
execution of this Agreement, or at such other time as shall be agreed upon by
you and the Company. The time and date of such delivery and payment are herein
called the "Closing Date." Delivery of the Securities shall be made to you for
your account against payment of the purchase price for the Securities by wire
transfer of immediately available funds to an account or accounts to be
designated by the Company at
10
least one business day prior to the Closing Date, and the Company shall promptly
reimburse you for the costs of obtaining such funds.
The Securities shall be registered in such name or names and in such
authorized denominations as you may request in writing at least two full
business days prior to the Closing Date. The Company will permit you to examine
and package such Securities for delivery at least one full business day prior to
the Closing Date.
3. OFFERING. Upon your authorization of the release of the
Securities, you propose to offer the Securities for sale to the public upon the
terms set forth in the Prospectus.
4. COVENANTS OF THE COMPANY: The Company covenants and agrees with
you as follows:
(a) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form
approved by the Representatives containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A of
the Rules and Regulations and (B) not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Representatives shall not
previously have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations.
(b) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment thereto shall
have become effective, (B) of receipt of any comments from the Commission, (C)
of any request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, and (D) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of the institution of
any proceedings for that purpose. The Company will use its best efforts to
prevent the issuance of any such
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stop order preventing or suspending the use of the Prospectus and to obtain as
soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters in
endeavoring to qualify the Securities for sale under the securities laws of such
jurisdictions as the Underwriters may reasonably have designated in writing and
will make such applications, file such documents, and furnish such information
as may be reasonably required for that purpose, provided the Company shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time to time, prepare
and file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a period as the
Underwriters may reasonably request for distribution of the Securities.
(d) The Company will deliver to, or upon the order of, the
Underwriters, from time to time, as many copies of any Preliminary Prospectus as
the Underwriters may reasonably request. The Company will deliver to, or upon
the order of, the Underwriters during the period when delivery of a Prospectus
is required under the Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Underwriters may reasonably request.
The Company will deliver to the Underwriters at or before the Closing Date, four
signed copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Underwriters such number
of copies of the Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested), and of all
amendments thereto, as the Underwriters may reasonably request.
(e) The Company will comply with the Act and the Rules and
Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and
the rules and regulations of the Commission thereunder, so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and the Prospectus. If during the period in which a prospectus is
required by law to be delivered by an Underwriter or
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dealer, any event shall occur as a result of which, in the judgment of the
Company or in the reasonable opinion of the Underwriters, it becomes necessary
to amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any time to
amend or supplement the Prospectus to comply with any law, the Company promptly
will prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with the
law.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earning statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the
Closing Date, deliver to the Underwriters copies of annual reports and copies of
all other documents, reports and information furnished by the Company to its
stockholders or filed with any securities exchange pursuant to the requirements
of such exchange or with the Commission pursuant to the Act or the Exchange Act.
The Company will deliver to the Underwriters similar reports with respect to
significant subsidiaries, as that term is defined in the Rules and Regulations,
which are not consolidated in the Company's financial statements.
(h) The Company shall apply the net proceeds of its sale of the
Securities as set forth in the Prospectus.
(i) The Company shall not invest, or otherwise use the proceeds
received by the Company from
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its sale of the Securities in such a manner as would require the Company or any
of the Subsidiaries to register as an investment company under the 1940 Act or
the rules and regulations thereunder.
(j) For a period of 180 days after the date of this Agreement,
except as described in or contemplated by the Prospectus, the Company will not,
without your prior written consent, issue, sell, offer or agree to sell, or
otherwise dispose of, directly or indirectly, any debt securities of the
Company.
(k) The Company will not claim the benefit of any usury laws
against any holders of the Securities.
5. PAYMENT OF EXPENSE. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any preliminary prospectus, the Prospectus and any amendments
thereof or supplements thereto (including, without limitation, fees and expenses
of the Company's accountants and counsel), the Indenture, the underwriting
documents (including this Agreement), and all other documents related to the
public offering of the Securities (including those supplied to you in quantities
as hereinabove stated), (ii) the issuance, transfer and delivery of the
Securities to you, including any transfer or other taxes payable thereon, (iii)
the qualification of the Securities under state and foreign securities or Blue
Sky laws and the eligibility of the Securities for investment under state and
foreign law, including the costs of printing and mailing a preliminary and final
"Blue Sky Survey" and a "Legal Investment Memorandum" and the reasonable fees of
your counsel and such counsel's reasonable disbursements in relation thereto,
(iv) the review of the terms of the public offering of the Securities by the
NASD, (v) the rating of the Securities by one or more rating agencies and (vi)
the fees and expenses of the Trustee and any agent of the Trustee and the fees
and disbursements of counsel for the
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Trustee in connection with the Indenture and the Securities.
6. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. Your obligations to
purchase and pay for the Securities shall be subject to the accuracy of the
representations and warranties of the Company contained as of the date hereof
and as of the Closing Date, to the absence from any certificates, opinions,
written statements or letters furnished to you pursuant to this Section 6 or to
your counsel, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ ("Underwriter's Counsel")
pursuant to this Section 6 of any material misstatement or omission, to the
performance by the Company of its obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule 424
and Rule 430A of the Rules and Regulations shall have been made, and any request
of the Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Representatives and
complied with to their reasonable satisfaction. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, 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 and no
injunction, restraining order, or order of any nature by a Federal or state
court of competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance of the Securities.
(b) The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Winston & ▇▇▇▇▇▇,
counsel for the Company, dated the Closing Date or the Option Closing Date, as
the case may be, addressed to the Underwriters to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Illinois, with corporate power and authority to own or
lease its properties and
15
conduct its business as described in the Registration Statement; each of
the Subsidiaries has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or lease its
properties and conduct its business as described in the Registration
Statement; the Company and each of the Subsidiaries are duly qualified to
transact business in all jurisdictions in which the failure to qualify
would have a materially adverse effect upon the business of the Company
taken as a whole; and the outstanding shares of capital stock of each of
the Subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by the Company or a Subsidiary; and,
to the best of such counsel's knowledge, the outstanding shares of capital
stock of each of the Subsidiaries is owned free and clear of all liens,
encumbrances and equities and claims except for the Existing Stock Pledges,
and no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into any
shares of capital stock or of ownership interests in the Subsidiaries are
outstanding.
(ii) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization" in the
Prospectus; the authorized shares of the Company's common stock have
been duly authorized; the outstanding shares of the Company's common
stock have been duly authorized and validly issued and are fully paid
and non-assessable.
(iii) To the knowledge of such counsel, no holder of
any securities of the Company or any other person has the right,
contractual or otherwise, which has not been satisfied or effectively
waived, to cause the Company to sell or otherwise issue to them, or to
permit them to underwrite the sale of, any securities or the right to
have any securities of the Company included in the Registration
16
Statement or the right, as a result of the filing of the Registration
Statement, to require registration under the Act of any of the Securities
of the Company.
(iv) The Registration Statement has become effective
under the Act and, to the best of the knowledge of such counsel, no
stop order proceedings with respect thereto have been instituted or
are pending or threatened under the Act.
(v) The Registration Statement, the Prospectus and
each amendment or supplement thereto appear on their face to be
appropriately responsive in all material respects with the
requirements of the Act and the applicable rules and regulations
thereunder (except that such counsel need express no opinion as to the
financial or statistical data therein).
(vi) The statements in the Prospectus under the
captions "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Liquidity and Capital Resources,"
"Description of Indebtedness and Other Commitments," "Certain
Transactions," and "Management -- The 1996 Warrant Plan," as such
statements constitute a summary of the legal matters or documents
referred to therein or matters of law, fairly summarize in all
material respects the information required to be shown (except that
such counsel need express no opinion as to the financial or
statistical data therein).
(vii) Such counsel does not know of any contracts or
other documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement or the Prospectus which are not so
described or filed as required, and such contracts and documents as
are summarized in the Registration Statement or the Prospectus are
fairly summarized in all material respects.
17
(viii) Such counsel knows of no material legal or
governmental proceedings pending or threatened against the Company or
any of the Subsidiaries except as set forth in the Prospectus.
(ix) The execution and delivery of this Agreement and
the Indenture and the consummation of the transactions herein
contemplated do not and will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
the Articles of Incorporation or By-laws of the Company, or any
material agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound.
(x) This Agreement has been duly authorized, executed
and delivered by the Company.
(xi) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body which has not been received
or granted is required in connection with the execution and delivery
of this Agreement and the Indenture and the consummation of the
transactions herein contemplated (other than as may be required by the
NASD or as required by state securities and Blue Sky laws as to which
such counsel need express no opinion).
(xii) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this
Agreement, and application of the net proceeds therefrom as described
in the Prospectus, required to register as an investment company under
the 1940 Act.
(xiii) The Option Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against
18
the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of
equity.
(xiv) The Indenture has been duly and validly
authorized, executed and delivered by the Company, has been duly
qualified under and complies as to form in all material respects with
the Trust Indenture Act and constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except as such enforcement may be subject to (A) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally and (B) general principles of equity
(regardless of whether such enforcement may be sought in a proceeding
in equity or at law), and except to the extent that a waiver of rights
under any usury laws may be unenforceable. No taxes or fees are
required to be paid with respect to the execution of the Indenture by
the Company and the issuance of the Securities. The Securities have
been duly and validly authorized, executed, authenticated, issued and
delivered and constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, except as such enforcement
may be subject to (A) bankruptcy, insolvency, reorganization,
fraudulent transfer or conveyance, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(B) general principles of equity (regardless of whether such
enforcement may be sought in a proceeding in equity or at law), and
except to the extent that a waiver of rights under any usury laws may
be unenforceable. The Underwriters will receive good, valid and
marketable title to the Securities being sold by the Company
hereunder,
19
free and clear of all liens, encumbrances, claims, security interests,
restrictions or transfer, shareholders' agreements, voting trusts and other
defects of title whatsoever. The Securities and the Indenture conform to
the descriptions thereof contained in the Registration Statement and the
Prospectus.
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that no facts have come to the
attention of such counsel which led them to believe that (i) the
Registration Statement, at the time it became effective under the Act (but
after giving effect to any modifications incorporated therein pursuant to
Rule 430A under the Act) and as of the Closing Date 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, and (ii) the Prospectus, or any supplement thereto, on the date
it was filed pursuant to the Rules and Regulations and as of the Closing
Date as the case may be, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they are made,
not misleading (except that such counsel need express no view as to
financial statements, schedules and statistical information therein). With
respect to such statement, Winston & ▇▇▇▇▇▇ may state that their belief is
based upon the procedures set forth therein, but is without independent
check and verification.
The Representatives shall also have received on the Closing Date the
opinion of local counsel for the Company experienced in such matters in
Jacksonville, dated the Closing Date addressed to the Underwriters to the
effect that the statements under the caption "Business-Government
Regulation," insofar as such statements constitute a summary of regulatory
matters in such jurisdiction relating to the outdoor advertising industry,
fairly describe the regulatory matters relating to such industry.
(c) The Representatives shall have received from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel
20
for the Underwriters, an opinion dated the Closing Date as to such matters as
the Representatives may reasonably require. In addition to the matters set
forth above, such opinion shall also include a statement to the effect that
nothing has come to the attention of such counsel which leads them to believe
that (i) the Registration Statement, or any amendment thereto, as of the time it
became effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Act) as of the Closing Date
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, and (ii) the Prospectus, or any supplement thereto, on the date
it was filed pursuant to the Rules and Regulations and as of the Closing Date
contained an untrue statement of a material fact or omitted to state a material
fact, necessary in order to make the statements, in the light of the
circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements, schedules and
statistical information therein). With respect to such statement, Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ may state that their belief is based upon the
procedures set forth therein, but is without independent check and verification.
(d) The Representatives shall have received at or prior to the
Closing Date from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ a memorandum or summary,
in form and substance satisfactory to the Representatives, with respect to the
qualification for offering and sale by the Underwriters of the Securities under
the state securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably have designated to the Company.
(e) The Representatives shall have received, on each of the
dates hereof and the Closing Date, as the case may be, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to you, of Price Waterhouse LLP, Ernst & Young LLP and BDO ▇▇▇▇▇▇▇,
LLP confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder and
stating that in their opinion the financial statements and schedules examined by
them and in-
21
cluded in the Registration Statement comply in form in all material respects
with the applicable accounting requirements of the Act and the related published
Rules and Regulations; and containing such other statements and information as
is ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and Prospectus.
(f) The Representatives shall have received on the Closing Date
a certificate or certificates of the President and Chief Executive Officer and
the Chief Financial Officer of the Company to the effect that, as of the Closing
Date each of them severally represents as follows:
(i) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been taken or are, to his knowledge, contemplated by the
Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing
Date;
(iii) All filings required to have been made pursuant
to Rules 424 or 430A under the Act have been made;
(iv) He has carefully examined the Registration
Statement and the Prospectus and, in his opinion, as of the effective
date of the Registration Statement, the statements contained in the
Registration Statement were true and correct, and such Registration
Statement and Prospectus did not omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, and since the effective date of the
Registration Statement, no event has occurred which should have been
set forth in a supplement to or an amendment of the Pro-
22
spectus which has not been so set forth in such supplement or amendment;
and
(v) Since the respective dates as of which information
is given in the Registration Statement and Prospectus, there has not
been any material adverse change or any development involving a
prospective material adverse change in or affecting the condition,
financial or otherwise, of the Company and its Subsidiaries taken as a
whole or the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business.
(g) The public offering of 5,750,000 shares of common stock of
Universal Outdoor Holdings, Inc., a Delaware corporation ("Holdings"), pursuant
to an Underwriting Agreement, dated October 9, 1996, among Holdings, the Selling
Shareholders named therein and Alex. ▇▇▇▇▇ & Sons Incorporated, Bear, ▇▇▇▇▇▇▇ &
Co. Inc. and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation as
representatives of the several underwriters listed on Schedule I thereto shall
have been consummated.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Representatives and to Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Underwriters.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriter's Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriter's Counsel, all your obligations hereunder may be cancelled by you
at, or at any time prior to, the Closing Date. Notice of such cancellation
shall be given to the Company in writing, or by telephone, telex or telegraph,
confirmed in writing.
23
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless you and
each person, if any, who controls you within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against any and all losses,
liabilities, claims, damages and out-of-pocket expenses whatsoever (including
but not limited to reasonable attorneys' fees and any and all reasonable
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which you or any such person may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or any
related preliminary prospectus or the Prospectus, or in any supplement thereto
or amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of you expressly for use
therein and PROVIDED, further, that the Company will not be liable to you or any
person who controls you with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus which is
corrected in the Prospectus if the Company sustains the burden of proving that
you sold securities to the person asserting any such loss, liability, claim or
damage without sending or giving, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus, if the Company
had previously furnished copies thereof to you. This indemnity agreement will
be in addition to any liability which the Company may otherwise have, including,
under this Agreement.
24
(b) You agree to indemnify and hold harmless the Company, each
of its directors, each of its officers who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, liabilities, claims, damages and expenses whatsoever (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of you expressly for use therein; PROVIDED, HOWEVER, that in no case
shall you be liable or responsible for any amount in excess of the underwriting
discount received by you. This indemnity will be in addition to any liability
which you may otherwise have including under this Agreement. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and the second paragraph and the second sentence of the third paragraph
under the caption "Underwriting" in the Prospectus constitute the only
information furnished in writing by or on behalf of you expressly for use in the
registration statement relating to the Securities as originally filed or in any
amendment thereof on or prior to the date hereof, any related preliminary
prospectus or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be.
25
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties,
it being understood, however, that the indemnifying parties shall not, in
connection with any one such action or separate but substantially similar
related actions arising out of the same general allegations or circumstances, be
liable for fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for the indemnified parties.
Anything in this subsection to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its
26
written consent; PROVIDED, HOWEVER, that such consent was not unreasonably
withheld.
8. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
you shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, any contribution received by
the Company from persons, other than you, who may also be liable for
contribution, including persons who control the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) to
which the Company and you may be subject, in such proportions as is appropriate
to reflect the relative benefits received by the Company and you from the
offering of the Securities or, if such allocation is not permitted by applicable
law or indemnification is not available as a result of the indemnifying party
not having received notice as provided in Section 7 hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of the Company and you in connection with the
statements or omissions which 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 you shall be deemed to be in
the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and (y) the underwriting discounts and commissions received by
you, respectively, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Company and of you 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
27
the Company or you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and you agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, (i) in no case shall you be liable or responsible for any amount
in excess of the underwriting discount applicable to the Securities purchased by
you hereunder, and (ii) 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.
Notwithstanding the provisions of this Section 8, you shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by you and distributed to the public were offered to
the public exceeds the amount of any damages that you have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. For purposes of this Section 8, each person, if any, who
controls you within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as you, and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of this Section 8. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; PROVIDED, HOWEVER, that such consent was not unreasonably
withheld.
28
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
All representations and warranties, covenants and agreements of you and the
Company contained in this Agreement, including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of you or any
controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of any payment for the Securities to and by you. The representations
contained in Section 1 and the agreements contained in Sections 5, 7, 8 and
10(d) hereof shall survive the termination of this Agreement including pursuant
to Section 10 hereof.
10. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective upon the later of when
(i) you and the Company shall have received notification of the effectiveness of
the Registration Statement or (ii) the execution of this Agreement. Until this
Agreement becomes effective as aforesaid, it may be terminated by the Company by
notifying you, or by you by notifying the Company. Notwithstanding the
foregoing, the provisions of this Section 10 and Sections 1, 5, 7 and 8 hereof
shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date if (A) any domestic or international event or act
or occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the New York or American Stock Exchanges shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on
the New York or American Stock Exchanges by the New York or American Stock
Exchanges or by order of the Commission or any other governmental authority
having jurisdiction; or (C) if a banking moratorium has been declared by a state
or federal authority or if any new restriction materially adversely affecting
the distribu-
29
tion of the Securities shall have become effective; or (D)(i) if the United
States becomes engaged in hostilities or there is an escalation of hostilities
involving the United States or there is a declaration of a national emergency or
war by the United States or (ii) if there shall have been a change in political,
financial or economic conditions if the effect of any such event in (i) or (ii)
is such as in your judgment makes it impracticable or inadvisable to proceed
with the offering, sale and delivery of the Securities on the terms contemplated
by the Prospectus.
(c) Any notice of termination pursuant to this Section 10 shall
be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 10(a) hereof or (ii) Section 10(b) hereof), or if the sale
of the Securities provided for herein is not consummated because any condition
to your obligations set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by you,
reimburse you for all out-of-pocket expenses (including the fees and expenses of
your counsel), incurred by you in connection herewith.
11. NOTICE. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to you shall be
mailed, delivered, or telexed or telegraphed and confirmed in writing, to Bear,
▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate
Finance Department; if sent to the Company, shall be mailed, delivered, or
telegraphed and confirmed in writing to Universal Outdoor, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer.
12. PARTIES. This Agreement shall inure solely to the benefit of,
and shall be binding upon you and the Company and the controlling persons,
directors, officers, employees and agents referred to in Sections 7 and 8, and
their respective successors and assigns, and no other person shall have or be
construed to have any
30
legal or equitable right, remedy or claim under or in respect of or by virtue of
this Agreement or any provision herein contained. The term "successors and
assigns" shall not include a purchaser, in its capacity as such, of Securities
from you.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
31
If the foregoing correctly sets forth the understanding between you
and the Company, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
UNIVERSAL OUTDOOR, INC.
By: _________________________________
Name:
Title:
Accepted, as of the date first above written.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BT SECURITIES CORPORATION
By: BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: ______________________
Name:
Title:
32
