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EXHIBIT 1.1
6,375,000 Shares
Xxxxx Advertising Company
Class A Common Stock
(Par Value $.001 per share)
UNDERWRITING AGREEMENT
June 5 1998
BT ALEX. XXXXX INCORPORATED
XXXXX XXXXXX, INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
c/o BT ALEX. XXXXX INCORPORATED
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Xxxxx Advertising Company, a Delaware corporation (the "Company"),
proposes to sell to the several underwriters (the "Underwriters") named in
Schedule I hereto an aggregate of 6,375,000 shares of the Company's Class A
Common Stock, par value $.001 per share (the "Firm Shares"). The respective
amounts of the Firm Shares to be so purchased by the several Underwriters are
set forth opposite their names in Schedule I hereto. The Selling Shareholders
listed on Schedule II propose to sell, at the Underwriters' option, an aggregate
of up to 956,250 additional shares of the Company's Class A Common Stock (the
"Selling Shareholder Option Shares") subject to the terms set forth below,
including the right, but not the obligation, of the Company to sell up to
478,125 of such number of shares (the "Company Option Shares"), thereby reducing
the number of additional shares sold by the Selling Shareholders by an
equivalent amount.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several Underwriters,
and (b) that the several Underwriters are willing, acting severally and not
jointly, to purchase the numbers of Firm Shares set forth opposite their
respective names in Schedule I, plus their pro rata portion of the Option
Shares if you elect to exercise the over-allotment option in whole or in part
for the accounts of the several
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Underwriters. The Firm Shares, the Selling Shareholder Option Shares (subject
to reduction as described below, to the extent the aforementioned option is
exercised) and the Company Option Shares (to the extent the aforementioned
option is exercised and the Company exercises its right to satisfy all or a
portion of such option) are herein collectively called the "Shares." The
Selling Shareholder Option Shares and the Company Option Shares are herein
collectively referred to as the "Option Shares." If the Underwriters listed on
Schedule I only include the Representatives, then references herein to the
Representatives shall mean the Underwriters.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company.
(a) The Company represents and warrants as follows:
(i) A registration statement on Form S-3 (File No.
333-50559) with respect to the Firm Shares and the Company Option Shares and a
registration statement on Form S-3 (File No. 333-52851) with respect to the
Option Shares have been filed with the Securities and Exchange Commission (the
"Commission") under the Act and have become effective. On the respective
effective dates of each registration statement, such registration statement
conformed in all material respects with the requirements of the Securities Act
of 1933, as amended (the "Act"), and the Rules and Regulations of the Commission
(the "Rules and Regulations"). Copies of such registration statements, including
any amendments thereto, the preliminary prospectuses 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
statements, including any documents incorporated therein by reference and any
exhibits, financial statements and schedules thereto, together with any
registration statement filed pursuant to Rule 462(b), herein referred to as the
"Registration Statement," have been declared effective by the Commission under
the Act and no post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement. The forms of prospectus dated April
20, 1998, and May 15, 1998, included in the Registration Statement as
supplemented by the prospectus supplement with respect thereto filed by the
Company with the Commission pursuant to Rule 424(b) are herein referred to
collectively as the "Prospectus." Each preliminary supplement or amendment
thereto relating to the Shares being issued and sold pursuant hereto is herein
referred to as a "Preliminary Prospectus." Any reference herein to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein,
as of the date of such Registration Statement, as the case may be, and, in the
case of any reference herein to any Prospectus, also shall be deemed to include
any documents incorporated by reference therein, and any supplements or
amendments relating to the Shares being issued and sold pursuant hereto, filed
with the Commission under Rule 424(b), and prior to the termination of the
offering of the Shares by the Underwriters. Any reference to the Registration
Statement shall include any post-effective amendment filed pursuant to Rule
462(d).
(ii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement; the
subsidiaries listed on Schedule III hereto (the "Subsidiaries") are the only
subsidiaries of the Company; the Subsidiaries have been duly organized and are
validly existing as
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corporations in good standing under the laws of their jurisdiction of
organization, with corporate power and authority to own or lease their
properties and conduct their business as described in the Registration
Statement, except where the failure so to 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 taken as a whole (a "Material
Adverse Effect"). The Company and the Subsidiaries are duly qualified to
transact business in all jurisdictions in which the conduct of their business
requires such qualification, except where the failure so to qualify would not
have a Material Adverse Effect; the outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable; and, except as indicated on Schedule III hereto, all of the
shares of capital stock of the Subsidiaries are owned by the Company (free and
clear of all liens, encumbrances and security interests (other than as
described in the Registration Statement) which would not reasonably be expected
individually or in the aggregate to materially impair the value of such shares,
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 of the Subsidiaries are outstanding.
Except for the Subsidiaries and investments in securities as described in the
Registration Statement, the Company has no equity or other interest in, or
right to acquire an equity or other interest in, any corporation, partnership,
trust or other entity.
(iii) The outstanding shares of Class A Common Stock of the
Company, including the Shares to be sold by the Selling Shareholders, have been
duly authorized and validly issued and are fully paid and non-assessable; the
Shares to be issued and sold by the Company have been duly authorized and when
issued and paid for as contemplated herein will be validly issued, fully-paid
and non-assessable; and no preemptive rights of stockholders exist with respect
to any of the Shares or the issue and sale thereof.
(iv) The Shares conform with the statements concerning
them in the Registration Statement.
(v) The Commission has not issued an order preventing or
suspending the use of any Prospectus or Preliminary Prospectus relating to the
proposed offering of the Shares 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 in all material respects conform or will conform, as the case
may be, to the requirements of, the Act and the Rules and Regulations. The
documents incorporated by reference in the Prospectus, at the time they were
filed or will be filed with the Commission, conformed or will conform at the
time of filing, in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or the Act, as
applicable, and the Rules and Regulations of the Commission thereunder.
Neither the Registration Statement nor any amendment thereto, and neither the
Prospectus nor any supplement thereto, including any documents incorporated by
reference therein, contains or will contain, as the case may be, any untrue
statement of a material fact or omits or will 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
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representations or warranties as to information contained in or omitted from
the Registration Statement or the Prospectus, or incorporated by reference or
any such amendment or supplement or any documents incorporated by reference
therein, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Selling Shareholders or any
Underwriter through the Representatives, specifically for use in the
preparation thereof.
(vi) The consolidated financial statements of the Company
and its subsidiaries, together with related notes and schedules, as set forth
or incorporated by reference in the Registration Statement, present fairly the
consolidated financial position and the consolidated results of operations of
the Company and its subsidiaries at the indicated dates and for the indicated
periods. All such financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently applied throughout
the periods involved, except as disclosed therein. The summary and selected
financial and statistical data included or incorporated by reference in the
Registration Statement present fairly in all material respects the information
shown therein and have been compiled on a basis consistent with the financial
statements presented therein.
(vii) Since August 7, 1996, the documents filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), at the time filed with the Commission, conformed
in all material respects to the requirements of the Exchange Act, and such
documents at the time of such filing did not, and as of the date hereof do not,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary or make the statements therein
not misleading.
(viii) There is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or the Subsidiaries
before any court or administrative agency or by any regulatory authority which
may reasonably be expected to have a Material Adverse Effect.
(ix) 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 under valid and binding
leases conforming to the description thereof set forth in the Registration
Statement, 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.
(x) The Company and the Subsidiaries have filed all
Federal, State 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, except for such failure 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.
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(xi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, as the same 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
condition, financial or otherwise, of the Company and the Subsidiaries taken as
a whole or the earnings, business affairs, management, or business prospects of
the Company and the 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 by the Company or any of the Subsidiaries other than
transactions in the ordinary course of business and changes and transactions
contemplated by the Registration Statement and the Prospectus, as the same may
be amended or supplemented. The Company and the Subsidiaries have no
contingent obligations which are material to the Company and the Subsidiaries
taken as a whole and which are not disclosed in the Registration Statement or
the Prospectus, as it may be amended or supplemented.
(xii) Neither the Company nor any of the Subsidiaries is,
nor with the giving of notice, lapse of time or both, will be, in default under
its Certificate of Incorporation or By-Laws or any agreement, lease, contract,
indenture or other instrument or obligation 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 business or financial condition of the Company
and the Subsidiaries taken as a whole. The consummation of the transactions
contemplated by this Agreement 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 of the Subsidiaries is a
party, or of the Charter or By-Laws of the Company or the Subsidiaries or any
order, rule or regulation applicable to the Company or any of the Subsidiaries
of any court or of any regulatory body or administrative agency or other
governmental body having jurisdiction which conflict, breach or default would
have a Material Adverse Effect.
(xiii) 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 consummation of the transactions
herein contemplated (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares 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.
(xiv) The Company and each of the Subsidiaries hold all
material licenses, consents, authorizations, approvals, orders, certificates
and permits (collectively, "Licenses") of and from, all federal, state, local,
foreign and other governmental authorities, all self-regulatory organizations
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 or maintain any such License would not have a
Material Adverse Effect.
(xv) The Company and the Subsidiaries are in compliance
with all applicable federal, state, foreign 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
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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.
(xvi) KPMG Peat Marwick LLP, who have certified the
financial statements of the Company filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, are independent
public accountants as required by the Act and the Rules and Regulations.
(xvii) The Company has never been, is not now, and
immediately after the sale of the Shares under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(xviii) The Shares of the Company to be sold under this
Agreement (subject to the additional approval of the shares, if any, being
registered pursuant to Rule 462(b)) have been approved for listing on the
Nasdaq Stock Market subject to official notice of issuance.
(b) Each of the Selling Shareholders severally represents and
warrants as follows:
(i) Such Selling Shareholder now has and, at the Option
Closing Date, will have, good and valid title to the Shares to be sold by such
Selling Shareholder, free of any liens, encumbrances, equities and claims, and
full right, power and authority to effect the sale and delivery of such Shares;
and upon the delivery of and payment for such Shares pursuant to this
Agreement, the Underwriters will acquire good and valid title thereto, free of
any liens, encumbrances, equities and claims.
(ii) Such Selling Shareholder has full right, power and
authority to execute and deliver this Agreement, the Power of Attorney and the
Custodian Agreement referred to below and to perform his or its obligations
under such Agreements. The execution and delivery of this Agreement and the
consummation by such Selling Shareholder of the transactions contemplated
herein will not result in a breach of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which such Selling Shareholder is a party, or of any
order, rule or regulation applicable to such Selling Shareholder of any court
or of any regulatory body or administrative agency or other governmental body
having jurisdiction.
(iii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to result in, or which has
constituted, or which might reasonably be expected to cause or result in,
stabilization or manipulation of the price of the Class A Common Stock of the
Company.
(iv) Without having undertaken to determine independently
the accuracy or completeness of the information contained in the Registration
Statement and documents incorporated by reference therein, such Selling
Shareholder is familiar with the Registration Statement and has no knowledge of
any material fact, condition or information not disclosed in the
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Registration Statement which had or may reasonably be expected to have a
Material Adverse Effect. The information pertaining to such Selling
Shareholder under the caption "Principal and Selling Stockholders" in the
Prospectus is complete and accurate in all material respects.
(v) No offering, sale or other disposition of any Common
Stock of the Company will be made for a period of 90 days after the date of
this Agreement, directly or indirectly, by such Selling Shareholder otherwise
than hereunder or with the prior written consent of BT Alex. Xxxxx
Incorporated.
(vi) The Power of Attorney appointing certain individuals
as such Selling Shareholder's attorney-in- fact to the extent set forth therein
and the Custodian Agreement (as defined in Section 2) have been duly executed
and delivered by such Selling Shareholder and are the valid and binding
agreements of such Selling Shareholder.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to
the transactions herein contemplated, each of the Selling Shareholders agrees
to deliver to you prior to or at the Closing Date a properly completed and
executed United States Treasury Department Form W-9 or Form 8709 (or other
applicable from or statement specified by Treasury Department regulations in
lieu thereof).
2. Purchase, Sale and Delivery of the Firm Shares.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Company
agrees to sell to the Underwriters 6,375,000 of the Firm Shares and each
Underwriter agrees, severally and not jointly, to purchase, at a price of
$27.84 per share, the number of Firm Shares set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in accordance with
Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made
in immediately available funds by wire transfer to the order of the Company,
against delivery of certificates therefor to the Underwriters. Such payment
and delivery are to be made at the offices of BT Alex. Xxxxx Incorporated, 0
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, at 10:00 A.M., Baltimore time, on the
third business day after the date of this Agreement or at such other time and
date not later than three business days thereafter as you and the Company shall
agree upon, such time and date being herein referred to as the "Closing Date."
(As used herein, "business day" means a day on which the New York Stock
Exchange is open for trading and on which banks in New York are open for
business and are not permitted by law or executive order to be closed.) The
certificates for the Firm Shares will be delivered in such denominations and in
such registrations as the Representatives request in writing not later than the
third full business day prior to the Closing Date, and will be made available
for inspection by the Representatives at least one business day prior to the
Closing Date.
(c) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Shareholders listed in Schedule II
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hereto hereby grant an option to the several Underwriters to purchase the Option
Shares at the price per share as set forth in the first paragraph of this
Section 2. The maximum number of Option Shares to be sold by each of the
Selling Shareholders is set forth opposite their respective names on Schedule II
hereto. The option granted hereby may be exercised in whole or in part but only
once and at any time upon written notice given within 30 days after the date of
this Agreement, by you, as Representatives of the several Underwriters, to the
Company setting forth the number of Option Shares as to which the several
Underwriters are exercising the option, the names and denominations in which the
Option Shares are to be registered and the time and date at which such
certificates are to be delivered. If the option granted hereby is exercised in
part, the respective number of Option Shares to be sold by each of the Selling
Shareholders listed in Schedule II shall be determined on a pro rata basis in
accordance with the percentages set forth opposite their names on Schedule II
hereto, adjusted by you in such manner as to avoid fractional shares.
Notwithstanding anything to the contrary contained herein, each Selling
Shareholder and each Underwriter agrees that the Company shall have the right,
but not the obligation, if the several Underwriters exercise such over-allotment
option, to sell to the several Underwriters Company Option Shares. If the
Company exercises such option, the number of Shares to be sold by the Selling
Shareholders shall be reduced by the number of Company Option Shares; such
reduction shall be pro rata, unless the Selling Shareholders agree on an
alternative arrangement. The number of Company Option Shares shall not exceed
478,125. In order to exercise its right to sell Company Option Shares, the
Company must give notice to BT Alex. Xxxxx Incorporated and each Selling
Stockholder within 24 hours of the receipt of notice from the Representatives of
the decision to exercise the over-allotment option. The time and date at which
certificates for Option Shares are to be delivered shall be determined by the
Representatives but shall not be earlier than three nor later than 10 full
business days after the exercise of such option, nor in any event prior to the
Closing Date (such time and date being herein referred to as the "Option Closing
Date"). If the date of exercise of the option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as the Option
Closing Date. The number of Option Shares to be purchased by each Underwriter
shall be in the same proportion to the total number of Option Shares being
purchased as the number of Firm Shares being purchased by such Underwriter bears
to 6,375,000, adjusted by you in such manner as to avoid fractional shares. The
option with respect to the Option Shares granted hereunder may be exercised only
to cover over-allotments in the sale of the Firm Shares by the Underwriters.
You, as Representatives of the several Underwriters, may cancel such option at
any time prior to its expiration by giving written notice of such cancellation
to the Company and the Selling Shareholders listed in Schedule II. To the
extent, if any, that the option is exercised, payment for the Option Shares
shall be made on the Option Closing Date in immediately available funds by wire
transfer to the order of the Company, as Custodian, for the Option Shares to be
sold by the Selling Shareholders and to the Company for any Company Option
Shares to be sold by the Company, in each case against delivery of certificates
therefor at the offices of BT Alex. Xxxxx Incorporated, 0 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000.
(d) Certificates in negotiable form for the total number of the
Shares to be sold hereunder by the Selling Shareholders shall be placed in
custody with the Company or BT Alex. Xxxxx Incorporated as custodian (the
"Custodian") pursuant to the Custodian Agreement executed by each Selling
Shareholder for delivery of all Shares to be sold hereunder by the Selling
Shareholders. Each of the Selling Shareholders specifically agrees that the
Shares represented by the certificates held in custody for the Selling
Shareholder under the Custodian Agreement are subject to the interests of the
Underwriters hereunder, that the arrangements made by the Selling Shareholders
for such custody are to that extent irrevocable, and that the obligations of
the Selling Shareholders hereunder shall not be terminable by any act or deed
of the Selling Shareholder (or by any other person, firm or corporation
including the Company, the Custodian or the Underwriters) or by operation of
law (including the death of a Selling Shareholder) or by the occurrence of any
other event or events, except as set forth in the Custodian Agreement. If any
such event should occur prior to the delivery to the Underwriters of the Shares
hereunder, certificates for the Shares, shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as if such event has
not occurred. The Custodian is authorized to
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receive and acknowledge receipt of the proceeds of sale of the Shares held by
it against delivery of such Shares.
3. Offering by the Underwriters.
(a) It is understood that the several Underwriters are to make a
public offering of the Firm Shares as soon as the Representatives deem it
advisable to do so. The Firm Shares are to be initially offered to the public
at the initial public offering price set forth in the Prospectus. The
Representatives may from time to time thereafter change the public offering
price and other selling terms. To the extent, if at all, that any Option
Shares are purchased pursuant to Section 2 hereof, the Underwriters will offer
them to the public on the foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters. BT Alex. Xxxxx Incorporated hereby represents and warrants that
it has full right, power and authority to execute and deliver this Agreement on
behalf of all of the Representatives.
4. Covenants of the Company.
(a) The Company covenants and agrees with the several Underwriters
and the Selling Shareholders that:
(i) The Company will (A) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a supplementary
prospectus setting forth such other information and the terms of the Offering
contemplated by Section 2 hereof, (B) not file any amendment to the
Registration Statement or supplement to the Prospectus or document incorporated
by reference therein 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 and (C) file on a timely basis all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the
Selling Shareholders promptly of any request of the Commission for amendment of
the Registration Statement or for supplement to the Prospectus or for any
additional information, or 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, and the
Company will use all reasonable efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus and to obtain as
soon as possible the lifting thereof, if issued.
(iii) The Company will deliver to, or upon the order of,
the Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company will
deliver to, or upon the order of, the Representatives
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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 Representatives may reasonably request; provided, however,
that if any Underwriter is required to deliver a prospectus in connection with
sales of any shares at any time nine months or more after the date of this
Agreement, upon your request, but at the expense of such Underwriter, the
Company will prepare and deliver to such Underwriter such copies of an amended
and supplemented Prospectus as you may reasonably request. The Company will
deliver to the Representatives at or before the Closing Date, four complete
conformed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the Representatives
such number of copies of the Registration Statement, including documents
incorporated by reference therein, and of all amendments thereto, as the
Representatives may reasonably request.
(iv) If during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer any event shall
occur as a result of which, in the judgment of the Company or in the opinion of
counsel for 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 the Act, the Company promptly will, at its election,
either (A) prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus or (B) prepare and file
with the Commission an appropriate filing under the Exchange Act which shall be
incorporated by reference in 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 law.
(v) 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.
(vi) The Company will, for a period of five years from the
Closing Date, deliver to the Representatives 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.
(vii) No offering, sale or other disposition of any Class A
Common Stock of the Company or any other securities convertible or exchangeable
or exercisable for Class A Common Stock or derivatives of Class A Common Stock,
will be made for a period of 90 days after the date of this Agreement, directly
or indirectly, by the Company otherwise than hereunder or with the prior
written consent of BT Alex. Xxxxx Incorporated except that the Company may,
without such consent, (i) issue shares of Class A Common Stock in connection
with the pending
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acquisitions or otherwise as consideration for the acquisition of additional
outdoor advertising or logo sign assets, provided that the persons receiving
such shares agree not to distribute such shares during the period of 90 days
following the date of this Agreement and (ii) issue shares upon the exercise of
options outstanding on the date of this Agreement or otherwise pursuant to the
Company's 1996 Equity Incentive Plan.
(b) Each Selling Shareholder, severally and not jointly,
covenants and agrees with the several Underwriters that:
(i) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of
1983 with respect to the transactions herein contemplated, each of the Selling
Shareholders agrees to deliver to you prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
(ii) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
5. Costs and Expenses. The Company will pay all costs, expenses
and fees incident to the performance of the obligations of the Company and the
Selling Shareholders under this Agreement, including, without limiting the
generality of the foregoing, the following: accounting fees of the Company;
the fees and disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the Registration
Statement, Preliminary Prospectuses, the Prospectus, this Agreement, the
Agreement Among Underwriters, the Underwriters' Selling Memorandum, the
Underwriters' Questionnaire, the Invitation Letter; the filing fees of the
Commission; the filing fees and expenses incident to securing any required
review by the NASD of the terms of the sale of the Shares; and the fees and
expenses incurred with respect to the listing of the Shares on the Nasdaq Stock
Market. The Company shall not, however, be required to pay for any of the
Underwriters' expenses except that, if this Agreement shall not be consummated
because the conditions in Section 7 hereof are not satisfied, or because this
Agreement is terminated by the Representatives pursuant to Section 6 hereof, or
by reason of any failure, refusal or inability on the part of the Company to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on its part to be performed, unless such failure
to satisfy said condition or to comply with said terms be due to the default or
omission of any Underwriter, then the Company shall reimburse the several
Underwriters for reasonable out-of- pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but neither the Company nor the Selling
Shareholders shall in any event be liable to any of the several Underwriters
for damages on account of loss of anticipated profits from the sale by them of
the Shares.
6. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on
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12
the Option Closing Date are subject to the accuracy in all material respects,
as of the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company contained herein, and to the
performance by the Company in all material respects, of its covenants and
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 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.
(b) (1) The Representatives shall have received on the
Closing Date or the Option Closing Date, as the case may be, the opinion of
Xxxxxx Dodge, 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
Delaware, with corporate power and authority to own, and hold under lease, its
properties and conduct its business as described in the Prospectus.
(ii) The Shares conform in all material respects to the
description thereof contained in the Prospectus; and the certificates for the
Shares are in due and proper form.
(iii) The Shares to be sold by the Company pursuant to this
Agreement have been duly authorized and will be validly issued, fully paid and
non-assessable when issued and paid for as contemplated by this Agreement; and
no statutory preemptive rights of stockholders or, to the best of such
counsel's knowledge, any other preemptive rights exist with respect to any of
the Shares or the issue and sale thereof.
(iv) The Registration Statement has become effective under
the Act and, to 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, all Preliminary
Prospectuses, the Prospectus and each amendment or supplement thereto filed
with the Commission on or prior to the date of such opinion comply as to form
in all material respects with the requirements of the Act and the applicable
rules and regulations thereunder in effect as of the time of such filing
(except that such counsel need express no opinion as to the financial
statements, schedules and other financial information included therein).
(vi) Each document incorporated by reference in the
Registration Statement, all Preliminary Prospectuses, the Prospectus and each
amendment or supplement thereto filed with
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13
the Commission on or prior to the date of such opinion complied as to form at
the time of such filing in all material respects with the applicable
requirements (if any) of the Exchange Act and the applicable rules and
regulations thereunder in effect as of the date of such filing (except that
such counsel need express no opinion as to the financial statements, schedules
and other financial information included therein).
(vii) The conditions for the use of Form S-3 as the proper
form for the Registration Statement have been satisfied.
(viii) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated, do not and will not
violate the Certificate of Incorporation or By-Laws of the Company, or result
in a breach of any of the terms or provisions of, or constitute a default
under, any material agreement or instrument of which such counsel has knowledge
to which the Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries may be bound (each a "Contractual
Obligation"), and which conflict, breach or default could reasonably be
expected to have a Material Adverse Effect.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(x) Except for approvals, consents, orders,
authorizations, designations, declarations or filings which have been waived,
or which have been obtained or made, no approval, consent, order,
authorization, designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in connection with the
execution and delivery by the Company of this Agreement and the consummation by
the Company 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).
(xi) The Company is not, and will not become as a result
of the consummation of the transactions contemplated by this Agreement, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and has not been an "investment company" at any time since 1988.
In rendering such opinion, Xxxxxx Dodge LLP may rely as to matters
governed by the laws of states other than the Delaware General Corporate Law or
Federal laws on local counsel in such jurisdictions provided that in each case
Xxxxxx Dodge LLP shall state that they believe that they and the Underwriters
are justified in relying on such other counsel and such other counsel's opinion
is also delivered to the Underwriters. 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 causes them to believe that (A)
the Registration Statement, as of the time it became effective under the Act
and as of the Closing Date or the Option Closing Date, as the case may be,
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 (B) the Prospectus or any supplement thereto, on the date
it was filed pursuant to Rules and Regulations and as of
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14
the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under which they were made not misleading (except
that such counsel need express no view as to financial statements and the notes
thereto, schedules and other financial and statistical information included or
incorporated by reference therein). With respect to such statement, Xxxxxx
Dodge LLP may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(2) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Kean, Miller,
Hawthorne, X'Xxxxxx, XxXxxxx & Xxxxxx, L.L.P., counsel for the Company and the
Selling Shareholders, dated the Closing Date or the Option Closing Date, as the
case may be, addressed to the Underwriters to the effect that:
(i) Based upon appropriate certificates of public
officials (which shall be furnished to the Representatives with the opinion),
each of the Subsidiaries incorporated or organized as a corporation or
partnership has been duly incorporated or organized and is validly existing and
in good standing under the laws of the jurisdiction of its incorporation or
organization with corporate or other organizational power and authority to own,
and hold under lease, its properties and conduct its business as described in
the Prospectus.
(ii) Based upon appropriate certificates of public
officials (which shall be furnished to the Representatives with the opinion),
the Company is duly qualified to transact business as a foreign corporation and
is in good standing under the laws of each of the jurisdictions in which the
conduct of its business requires such qualification, except to the extent that
the failure to qualify would not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(iii) The outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly issued and are fully paid
and non-assessable. To the best knowledge of such counsel, the shares of
capital stock of the Subsidiaries are owned by the Company or one of the other
Subsidiaries free and clear of all liens, encumbrances and security interests,
and except as disclosed in the Registration Statement, 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 of the Subsidiaries are outstanding.
(iv) The Company's Class A and Class B Common Stock have
been duly authorized; the outstanding shares of its Class A Common Stock,
including the Shares to be sold by the Selling Shareholders, have been duly
authorized and validly issued and are fully paid and non-assessable.
(v) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated by reference in
the Registration Statement or described in the Registration Statement or the
Prospectus which are not so filed, incorporated by reference or described as
required.
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15
(vi) Such counsel knows of no material legal proceedings
or regulatory or other claims pending or threatened against the Company or the
Subsidiaries of a character required to be reflected in the Prospectus that are
not set forth in the Prospectus.
(vii) The execution and delivery of this Agreement and the
consummation of the sale of Option Shares by each Selling Shareholder as herein
contemplated do not violate or result in a breach of any terms or provisions
of, or constitute a default under any material agreement or instrument of which
such counsel has knowledge, to which such Selling Shareholder is a party or by
which such Selling Shareholder may be bound, which breach could reasonably be
expected to have a materially adverse effect on the ability of such Selling
Shareholder to perform his or its obligations under this Agreement.
(viii) Each Selling Shareholder has full legal right, power
and authority, and any approval required by law (other than as may be required
by State securities and Blue Sky laws or for clearance of the offering with the
NASD, as to which counsel need express no opinion) to sell, assign, transfer
and deliver the Shares to be sold by such Selling Shareholder pursuant to this
Agreement.
(ix) The Custodian Agreement, the Power of Attorney and
this Agreement have been executed and delivered by the Selling Shareholders and
the Custodian Agreement and the Power of Attorney are valid and binding
obligations of such Selling Shareholders enforceable in accordance with their
respective terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, moratorium or similar laws
affecting creditors' rights generally and by general principles of equity and
the discretion of the court before which any proceeding therefor may be brought
(regardless of whether enforceability is considered in a proceeding at law or
in equity).
(x) Upon payment for the Option Shares to be sold by the
Selling Shareholders, and delivery of the stock certificates evidencing such
Option Shares in accordance with the Underwriting Agreement, the Underwriters
(assuming that they are purchasing the Option Shares being sold by the Selling
Shareholders in good faith and without actual notice of any adverse claim) will
have acquired valid title to the Shares being sold by each Selling Shareholder
on the Option Closing Date, free and clear of any adverse claims, any lien in
favor of the Company, and any restrictions on transfer imposed by the Company.
The opinions set forth in subparagraphs (vii), (viii), (ix) and (x)
above need only be given at the time of the Option Closing. 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 causes them
to believe that (A) the Registration Statement, as of the time it became
effective under the Act and as of the Closing Date or the Option Closing Date,
as the case may be, 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 (B) the Prospectus or any supplement
thereto, on the date it was filed pursuant to Rules and Regulations and as of
the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make
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16
the statements therein in light of the circumstances under which they were made
not misleading (except that such counsel need express no view as to financial
statements and the notes thereto, schedules and other financial and statistical
information included or incorporated by reference therein).
(3) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Xxxxxxx X. Xxxxx
III, Esquire, general counsel of 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 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
include a statement to the effect that nothing has come to the attention of
such counsel which causes them to believe that (A) the Registration Statement,
as of the time it became effective under the Act and as of the Closing Date or
the Option Closing Date, as the case may be, 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 (B) the
Prospectus or any supplement thereto, on the date it was filed pursuant to
Rules and Regulations and as of the Closing Date or the Option Closing Date,
as the case may be, 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 in light of the circumstances under which
they were made not misleading (except that such counsel need express no view as
to financial statements, and the notes thereto, schedules and other financial
and statistical information included or incorporated by reference therein).
(c) The Representatives shall have received from Piper & Marbury
L.L.P., counsel for the Underwriters, an opinion dated the Closing Date or the
Option Closing Date, as the case may be, substantially to the effect specified
in subparagraphs (iii), (iv), (v) and (ix) of Paragraph (b)(1) of this Section
6, and that the Company is a validly organized and existing corporation under
the laws of the State of Delaware. In rendering such opinion Piper & Marbury
L.L.P. may rely as to all matters governed other than by the laws of the State
of Maryland, the Delaware General Corporation Law or Federal laws on the
opinion of counsel referred to in paragraph (b) of this Section 6. 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 (A) the Registration Statement, as of the time it became
effective under the Act and as of the Closing Date or the Option Closing Date,
as the case may be, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, and (B) the Prospectus or any supplement thereto, on the date it
was filed pursuant to Rules and Regulations and as of the Closing Date or the
Option Closing Date, as the case may be, 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 (except that such
counsel need
- 16 -
17
express no view as to financial statements, schedules and other financial
information included or incorporated by reference therein). With respect to
such statement, Piper & Marbury L.L.P. 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 on the Closing Date or
the Option Closing Date, as the case may be, a signed letter from KPMG Peat
Marwick LLP, dated the Closing Date or the Option Closing Date, as the case may
be, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter signed by such firm and dated and delivered
to the Representatives on the date hereof, that nothing has come to their
attention during the period from the date five days prior to the date hereof,
to a date not more than three days prior to the Closing Date or the Option
Closing Date, as the case may be, which would require any change in their
letter dated the date hereof if it were required to be dated and delivered on
the Closing Date or the Option Closing Date, as the case may be. All such
letters shall be in form and substance satisfactory to the Representatives.
The letter from KPMG Peat Marwick, shall confirm that they have performed the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No. 71,
Interim Financial Information, on the unaudited balance sheet data of the
Company as of March 31, 1998 and the unaudited income and cash flow information
of the Company for the three month periods ended March 31, 1998, included in
the Registration Statement.
(e) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, a certificate or certificates of
the Chief Executive Officer and the Chief Financial Officer of the Company to
the effect that, as of the Closing Date or the Option Closing Date, as the case
may be, each of them severally represents in such capacity 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) He does not know of any litigation instituted or
threatened against the Company or any of the Subsidiaries a character required
to be disclosed in the Registration Statement which is not so disclosed; he
does not know of any material contract required to be filed as an exhibit to
the Registration Statement which is not so filed; and the representations and
warranties of the Company contained in Section 1 hereof are true and correct in
all material respects as of the Closing Date or the Option Closing Date, as the
case may be.
(iii) 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,
including any documents incorporated by reference therein, were true and
correct in all material respects, and such Registration Statement and
Prospectus or any document incorporated by reference therein did not 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 in which they were
made, not misleading and, in his opinion, since the effective date of the
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18
Registration Statement, no event has occurred which should have been set forth
in a supplement to or an amendment of the Prospectus which has not been so set
forth in such supplement or amendment.
(f) The Company and the Selling Shareholders shall have furnished
to the Representatives such further certificates and documents confirming the
representations and warranties contained herein and related matters as the
Representatives may reasonably have requested.
(g) The Firm Shares, and Option Shares, if any, have been approved
for listing upon official notice of issuance on the Nasdaq Stock Market.
(h) The Representatives shall have received from each executive
officer and director of the Company listed on Schedule IV a letter or letters,
in form and substance satisfactory to the Underwriters, pursuant to which such
person shall agree not to offer, sell, sell short or otherwise dispose of any
shares of Common Stock of the Company or other capital stock of the Company, or
any other securities convertible, exchangeable or exercisable for Common Stock
or derivative of Common Stock owned by such person (or as to which such person
has the right to direct the disposition of) for a period of 90 days after the
date of this Agreement, except with the prior written consent of BT Alex. Xxxxx
Incorporated or except as may be expressly permitted by the terms of such
letter or letters.
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 Piper & Marbury
L.L.P., counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be.
In such event, the Company, the Selling Shareholders and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company and the Selling
Shareholders. The obligations of the Company and the Selling Shareholders to
sell and deliver the portion of the Shares required to be delivered as and when
specified in this Agreement are subject to the conditions that at the Closing
Date or the Option Closing Date, as the case may be, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and in
effect or proceedings therefor initiated or threatened.
8. Indemnification
(a) The Company and each of the Selling Shareholders agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the
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19
meaning of the Act against any losses, claims, damages or liabilities to which
such Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the
omission or alleged omission to state therein a material fact required to be
stated or incorporated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided, however,
that the Company and each of the Selling Shareholders will not be liable in any
such case to the extent that (i) any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement,
or omission or alleged omission made or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof; or (ii) such statement or
omission was contained or made in any Preliminary Prospectus and corrected in
the Prospectus and (A) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Shares which
are the subject thereof from such Underwriter in the offering and (B) such
Underwriter failed to deliver or provide a copy of the Prospectus to such
person at or prior to the confirmation of the sale of such Shares in any case
where such delivery is required by the Act. Notwithstanding the foregoing, the
Selling Shareholders' obligations to indemnify and hold harmless under this
Section 8 shall be limited to any loss, claim, liability, action or proceeding
arising out of information provided by such Selling Shareholder and included in
the Prospectus or Registration Statement. In no event, however, shall the
aggregate liability of any Selling Shareholder for indemnification under this
Section 8(a) exceed the lesser of (i) that proportion of the total of such
losses, claims, damages or liabilities indemnified against equal to the
proportion of the total Shares sold hereunder which is being sold by such
Selling Shareholder, or (ii) the net proceeds after underwriters discounts and
commissions received by such Selling Shareholder from the Underwriters in the
offering. In addition, the Selling Shareholders will not be obligated to make
a payment under this subparagraph (a) for any indemnification claims if and to
the extent that payment of such claim is made by the Company within ninety (90)
days after written demand by the Underwriters. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration
Statement, the Selling Shareholders, their respective partners and each person,
if any, who controls the Company within the meaning of the Act, against any
losses, claims, damages or liabilities to which any Selling Shareholder, the
Company or any such director, officer, or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained or incorporated by reference in the Registration
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20
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer,
Selling Shareholder, partner or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives or the
Selling Shareholders specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to any
party who shall fail to give notice as provided in this Section 8(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the
indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a) or (b). In case any such proceeding shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party and shall pay as incurred
the fees and disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred the fees and expenses of the counsel retained by
the indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them, or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel
reasonably acceptable to the indemnified party within a reasonable period of
time after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Company and the Selling Shareholders in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party
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21
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by the Company, the
Selling Shareholders and the Underwriters from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company, the Selling Shareholders and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company, the Selling Shareholders and the Underwriters 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
Shareholders 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. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section
8(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above
in this Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 8(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Shares purchased by such Underwriter, (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 and (iii) no Selling Shareholder
shall be required to contribute any amount in excess of (a) the proceeds
received by such Selling Shareholder from the Underwriters in the offering
after deducting underwriting discounts and commissions plus (b) any damages
previously paid by such Selling Shareholder. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
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22
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
9. Default by Underwriters. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to purchase and
pay for the portion of the Shares which such Underwriter has agreed to purchase
and pay for on such date (otherwise than by reason of any default on the part
of the Company or a Selling Shareholder), you, as Representatives of the
Underwriters, shall use your best efforts to procure within 24 hours thereafter
one or more of the other Underwriters, or any others, to purchase from the
Company and the Selling Shareholders such amounts as may be agreed upon and
upon the terms set forth herein, the Firm Shares or Option Shares, as the case
may be, which the defaulting Underwriter or Underwriters failed to purchase.
If during such 24 hours you, as such Representatives, shall not have procured
such other Underwriters, or any others, to purchase the Firm Shares or Option
Shares, as the case may be, agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of shares with
respect to which such default shall occur does not exceed 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm Shares or Option Shares, as the case may be, which they are
obligated to purchase hereunder, to purchase the Firm Shares or Option Shares,
as the case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of shares of Firm Shares or Option
Shares, as the case may be, with respect to which such default shall occur
exceeds 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the Company and the Selling Shareholders or you as the Representatives
of the Underwriters will have the right, by written notice given within the
next 24-hour period to the parties to this Agreement, to terminate this
Agreement without liability on the part of the non-defaulting Underwriters or
of the Company or of the Selling Shareholders except to the extent provided in
Section 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 9, the Closing Date or Option
Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you, as Representatives, may determine in order that
the required changes in the Registration Statement or in the Prospectus or in
any other documents or arrangements may be effected. The term "Underwriter"
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section 9 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. Notices. All communications hereunder shall be in writing
and, except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to BT Alex.
Xxxxx Incorporated, 000 Xxxxxxx Xxxxxx, 0x Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxx, Managing Director with a copy to Piper & Marbury
L.L.P., 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx
X. Xxxxx, Xx; if to the Company or if to the Company, as Custodian for the
Selling Shareholders, to Lamar
- 22 -
23
Advertising Company, 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxx, 00000;
Attention: Xxxxx X. Xxxxxx, Xx., President; , with a copy to Xxxxxx & Dodge
LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxx.
11. Termination. This Agreement may be terminated by you by
notice to the Company and the Selling Shareholders as follows:
(a) at any time after the date hereof and prior to the Closing if
any of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, 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 the Subsidiaries taken as a whole or the earnings, business
affairs, management or business prospects of the Company and the Subsidiaries
taken as a whole, whether or not arising in the ordinary course of business,
(ii) any outbreak or escalation of hostilities or declaration of war or
national emergency after the date hereof or other national or international
calamity or crisis or change in economic or political conditions if the effect
of such outbreak, escalation, declaration, emergency, calamity, crisis or
change on the financial markets of the United States would, in your reasonable
judgment, make the offering or delivery of the Shares impracticable, (iii)
trading in securities on the New York Stock Exchange or the American Stock
Exchange shall have been suspended or materially limited (other than
limitations on hours or numbers of days of trading) or minimum prices shall
have been established for securities on either such Exchange, (iv) declaration
of a banking moratorium by either federal or New York State authorities, (v)
any downgrading in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Exchange Act of 1934, as amended);
(vi) the taking of any action by any governmental body or agency in respect of
its monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States or elsewhere; or
(vii) any litigation or proceeding is pending or threatened against the
Underwriters which seeks to enjoin or otherwise restrain, or seeks damages in
connection with, or questions the legality or validity of this Agreement or the
transactions contemplated hereby; or
(b) as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company
and the Selling Shareholders, as to any obligation of the Underwriters to
purchase the Option Shares, upon the occurrence at any time prior to the Option
Closing Date of any of the events described in subparagraph (a) above or as
provided in Sections 6 and 9 of this Agreement.
13. Successors. This Agreement has been and is made solely for
the benefit of the Underwriters, the Company and the Selling Shareholders and
their respective successors, executors, administrators, heirs and assigns, and
the officers, directors and controlling persons referred to herein, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Shares merely because of such purchase.
- 23 -
24
14. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or controlling person
thereof, by or on behalf of the Company or its directors or officers or by or
on behalf of a Selling Shareholder and (c) delivery of and payment for the
Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
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25
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholders and the several Underwriters in accordance with its terms.
Very truly yours,
Xxxxx Advertising Company
By: /s/ XXXXX X. XXXXXX, XX.
----------------------------------------
Xxxxx X. Xxxxxx, Xx.
President
Selling Shareholders
Xxxxxx Family Limited Partnership
*
--------------------------------------------
*
--------------------------------------------
Xxxxxxx X. Xxxxx III
*
--------------------------------------------
MLLD Family Company L.L.C.
*
--------------------------------------------
Xxxxxxx Xxx Xxxxx Trust
*
--------------------------------------------
Xxxxxxxx Xxxxxxxxx Xxxxx Trust
*
--------------------------------------------
Madison X. Xxxxx Trust
* By: /s/ XXXXX X. XXXXXX, XX.
--------------------------------------------
Xxxxx X. Xxxxxx, Xx., as Attorney-in-Fact
- 25 -
26
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
BT ALEX. XXXXX INCORPORATED
XXXXX XXXXXX INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By BT ALEX. XXXXX INCORPORATED
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Authorized Officer
- 26 -
27
SCHEDULE I
Schedule of Underwriters
Number of Firm Shares
Underwriter to be Purchased
----------- ----------------------------
BT Alex. Xxxxx Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,275,000
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,275,000
NationsBanc Xxxxxxxxxx Securities LLC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,275,000
Prudential Securities Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,275,000
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,275,000
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,375,000
- 27 -
28
SCHEDULE II
Schedule of Selling Shareholders
Percentage of
Number of Option Shares Total Number
Selling Shareholder to be Sold of Option Shares
------------------- ------------------------ ----------------
Xxxxxx Family Limited Partnership . . . . . . . . . . . . . . . . . 645,469 67.5%
Xxxxxxx X. Xxxxx III . . . . . . . . . . . . . . . . . . . . . . . 119,531 12.5
MLLD Family Company L.L.C. . . . . . . . . . . . . . . . . . . . . 71,719 7.5
Xxxxxxx Xxx Xxxxx Trust . . . . . . . . . . . . . . . . . . . . . . 23,906 2.5
Xxxxxxxx Xxxxxxxxx Xxxxx Trust . . . . . . . . . . . . . . . . . . 47,812 5.0
Madison X. Xxxxx Trust . . . . . . . . . . . . . . . . . . . . . . 47,813 5.0
Total . . . . . . . . . . . . . . . . . . . . . . . 956,250
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29
SCHEDULE III
Subsidiaries of Xxxxx Advertising Company*
State of Other Jurisdiction of
Name Incorporation or Organization
---- -----------------------------
The Lamar Corporation Louisiana
Interstate Logos, Inc. Delaware
Xxxxx Advertising of Colorado Springs, Inc. Colorado
Xxxxx Advertising of Jackson, Inc. Mississippi
Xxxxx Advertising of Mobile, Inc. Alabama
Xxxxx Advertising of South Georgia, Inc. Xxxxxxx
Xxxxx Advertising of South Mississippi, Inc. Mississippi
Xxxxx Advertising of Youngstown, Inc. Delaware
TCL Properties, Inc. Louisiana
Missouri Logos, Inc. Missouri
Missouri Logos, a Partnership Nebraska
Nebraska Logos, Inc. Missouri
Oklahoma Logo Signs, Inc. Oklahoma
Utah Logos, Inc. Utah
Ohio Logos, Inc. Ohio
Georgia Logos, Inc. Georgia
Kansas Logos, Inc. Kansas
Lamar Air, LLC Louisiana
Lamar Pensacola Transit, Inc. Florida
Lamar Tennessee Limited Partnership, Inc. Louisiana
Lamar Tennessee Limited Partnership Tennessee
Lamar Tennessee Limited Partnership II Tennessee
Lamar Texas General Partner, Inc. Texas
Lamar Texas Limited Partnership Louisiana
Michigan Logos, Inc. Michigan
Minnesota Logos, Inc. Minnesota
Minnesota Logos, a Partnership Minnesota
Mississippi Logos, Inc. Mississippi
New Jersey Logos, Inc. South Carolina
South Carolina Logos, Inc. New Jersey
Tennessee Logos, Inc. Tennessee
Texas Logos, Inc. Texas
TLC Properties II, Inc. Texas
Virginia Logos, Inc. Xxxxxxxx
Xxxxx Advertising of Huntington-Bridgeport, Inc. West Virginia
Lamar Advertising of Penn, Inc. Delaware
Xxxxx Advertising of Michigan, Inc. Michigan
Xxxxx Advertising of Missouri, Inc. Missouri
Canadian TODS Limited Nova Scotia, Canada
Nevada Logos, Inc. Nevada
Kentucky Logos, Inc. Kentucky
Florida Logos, Inc. Florida
Xxxxx Electrical, Inc. Louisiana
Xxxxx Advertising of South Dakota, Inc. South Dakota
TLC Properties, L.L.C. Louisiana
__________________________________
* All subsidiaries are 100% owned by Xxxxx Advertising Company, except for
Missouri Logos, a Partnership, in which Xxxxx Advertising Company holds a 66
2/3% partnership interest.
- 29 -
30
Schedule IV
Lock-Up Letters
Xxxxx X. Xxxxxx Xx.
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
T. Xxxxxxx Xxxxxxx, Xx.
Xxxx X. Rome, Jr.
Xxxxxxx X. Xxxxxxx
Xxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx Family Limited Partnership
Xxxxxxx X. Xxxxx III
Xxxx Xxx Xxxxx Xxxxx
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