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EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
[INSERT PRINCIPAL AMOUNT OR NUMBER OF SECURITIES]
XXXXX ADVERTISING COMPANY
[INSERT TITLE OF SECURITIES]
UNDERWRITING AGREEMENT
DATED __________ __, ____
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UNDERWRITING AGREEMENT
[Insert date]
----------- --, ----
[Insert Name and Address of Underwriter(s)]
Ladies and Gentlemen:
[If shares of capital stock will be issued, the first introductory paragraph
will be inserted. If debt securities will be issued, the second introductory
paragraph will be used.]
[Xxxxx Advertising Company, a Delaware corporation (the "Company"),
proposes to issue and sell to you (the "Underwriter(s)") an aggregate of {___}
shares (the "Securities") of its {insert class of capital stock}, par value
$____ per share (the "{insert class of capital stock}"). {If the Underwriter(s)
will be granted an over-allotment option to purchase additional Securities,
then the following provision will be inserted and the defined term "Securities"
above will be changed to "Firm Securities".} {In addition, the Company has
granted to the Underwriter(s) an option to purchase up to an additional {___}
shares (the "Option Securities") of {insert class of capital stock}, as
provided in Section 2. The Firm Securities and, if and to the extent such
option is exercised, the Option Securities, are collectively called the
"Securities."}]
[Xxxxx Advertising Company, a Delaware corporation (the "Company"),
proposes to issue and sell to you (the "Underwriter(s)") $_________ aggregate
principal amount of its {insert full title of security} (the "Securities") to
be issued pursuant to an indenture to be dated as of {insert date} (the
"Indenture") {between} {among} the Company {if the securities will be
guaranteed, then the following phrase will be inserted-"certain subsidiaries of
the Company as guarantors (the "Guarantors")"} and {name of financial
institution}, as trustee (the "Trustee"). {If the Underwriters will be granted
an over-allotment option to purchase additional securities, then the following
provision will be inserted and the defined term "Securities" above will be
changed to "Firm Securities"}. {In addition, the Company has granted to the
Underwriter(s) an option to purchase up to $_____________ additional aggregate
principal amount of Securities (the "Option Securities") to be issued pursuant
to the Indenture, as provided in Section 2. The Firm Securities, and if and to
the extent such option is exercised, the Option Securities, are collectively
called the "Securities".} {If the Securities will be guaranteed, then the
following provision will be inserted- "Payment of the principal, interest and
premium, if any, on the Securities shall be guaranteed on a senior,
subordinated basis by each of the Guarantors as provided and to the extent set
forth in the Indenture (the "Guarantees"). All references herein to the
Securities include the Guarantees. The Company and the Guarantors are
collectively called the "Registrants"}].
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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:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as follows:
(a) A registration statement on Form S-3 (File No. 333-50559) (the
"1998 Registration Statement") and a registration statement on Form S-3 (File
No. 333-71929) (the "1999 Registration Statement") with respect to, among other
securities, the Securities [if the Securities are convertible, the following
will be inserted-"and the shares of {insert title of underlying securities}
issuable upon exercise or conversion of the Securities (the "Underlying
Securities")], have been filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act") and have
become effective. On the effective date of each such registration statement,
such registration statement conformed in all material respects with the
requirements of the Act, [if debt securities will be issued-", Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act")" will be inserted], and the
Rules and Regulations of the Commission (the "Rules and Regulations"). Copies
of the 1999 Registration Statement, including the prospectus contained therein
but excluding exhibits to such registration statement other than those
documents incorporated by reference in such prospectus, as finally amended and
revised, have heretofore been delivered by the Company to the Underwriter(s).
The 1998 and 1999 Registration Statements, including any documents incorporated
therein by reference and any exhibits, financial statements and schedules
thereto, are herein collectively referred to as the "Registration Statements".
No post-effective amendments to the Registration Statements have been filed as
of the date of this Agreement, except that the 1999 Registration Statement
constitutes a post-effective amendment of the 1998 Registration Statement. The
form of prospectus dated February 4, 1999 included in the 1999 Registration
Statement, as supplemented by the prospectus supplement, dated the date of this
Agreement, relating to the offering of the Securities and to be filed by the
Company with the Commission pursuant to Rule 424(b), is herein referred to as
the "Prospectus." Any reference herein to the Registration Statements or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein, and, in the case of any reference herein to the
Prospectus, also shall be deemed to include any supplements relating to the
Securities being issued and sold pursuant hereto filed with the Commission
under Rule 424(b), in each case, subsequent to the date hereof and prior to the
termination of the offering of the Securities by the Underwriter(s).
(b) Except as otherwise disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the Prospectus: (i) there
has been no material adverse change, or any development that could reasonably
be expected to result in a material adverse change, in the condition, financial
or otherwise, or in the earnings, business or operations, whether or not
arising from transactions in the ordinary course of business, of the Company
and its subsidiaries, considered as a whole (any such change is called a
"Material Adverse Change"); (ii) the Company and its subsidiaries, considered
as a whole, have not incurred any material liability or obligation, indirect,
direct or
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contingent, not in the ordinary course of business nor entered into any
material transaction or agreement not in the ordinary course of business; and
(iii) there has been no dividend or distribution of any kind declared, paid or
made by the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any of its subsidiaries of any class
of capital stock.
(c) 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 1999 Registration Statement; the subsidiaries
listed on Schedule I hereto (the "Subsidiaries") are the only subsidiaries of
the Company; each Subsidiary has been duly organized and is validly existing as
a corporation, partnership or limited liability company in good standing under
the laws of its jurisdiction of organization, with corporate, partnership or
other organizational power and authority to own or lease its properties and
conduct its business as described in the 1999 Registration Statement, except
where the failure so to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. The Company and each Subsidiary
is duly qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification, except where the failure
so to qualify would not reasonably be expected to result in a Material Adverse
Change; the outstanding shares of capital stock or other equity interest of
each Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable; and, except as indicated on Schedule I hereto, all of the
shares of capital stock of the Subsidiaries are owned by the Company, directly
or indirectly through another Subsidiary, free and clear of all liens,
encumbrances and security interests (other than as described in the 1999
Registration Statement) other than those 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
1999 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.
[If equity securities will be issued, the first paragraph (1)(d) below will be
inserted. If debt securities will be issued, then the second paragraph (1)(d)
below will be inserted]
[(d) The outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable; the
Securities 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 Securities or the issue and sale thereof.]
[(d) (i) The Indenture has been duly qualified under the Trust
Indenture Act. The execution and delivery of, and the performance by the
{Company of its} {or, if the
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Securities will be guaranteed, Registrants of their} obligations under the
Indenture have been duly and validly authorized by the {the Company} {or, if
the Securities will be guaranteed, the Registrants}, and the Indenture has been
duly executed and delivered by {the Company} {or, if the Securities will be
guaranteed-the Registrants} and constitutes the valid and legally binding
agreement of {the Company} {or, if the Securities will be guaranteed-the
Registrants}, enforceable against {the Company} {each of the Registrants} in
accordance with its terms, except (i) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) the
remedy of specific performance and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court before
which the proceedings may be brought.
(ii) The Securities have been duly authorized by the Company,
and when the Securities are executed and authenticated in accordance with the
provisions of the Indenture and delivered to the Underwriters against payment
therefor in accordance with the terms of this Agreement, the Securities will be
entitled to the benefits of the Indenture and will constitute valid and legally
binding agreements of the Company, enforceable against the Company in
accordance with their terms, except (i) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(ii) the remedy of specific performance and other forms of equitable relief may
be subject to certain equitable defenses and to the discretion of the court
before which the proceedings may be brought.]
[If guaranteed debt securities will be issued, then the following provision
will be inserted as paragraph 1(d)(iii)]
(iii) The Guarantees have been duly authorized and validly
issued by each of the Guarantors, and when the Securities are executed and
authenticated in accordance with the Indenture and delivered to the
Underwriter(s) against payment therefor in accordance with the terms of this
Agreement, the Securities will be entitled to the benefit of the Guarantees,
and the Guarantees will constitute valid and legally binding agreements of each
of the Guarantors, enforceable against each of the Guarantors in accordance
with their terms set forth in the Indenture, except (A) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) the remedy of specific
performance and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which the
proceedings may be brought.
[If convertible securities are being issued, then the following provision will
be inserted at the end of paragraph 1(d)]
[When the Securities are delivered and paid for pursuant to
this Agreement on the Closing Date or Option Closing Date (each as defined in
Section 2), such Securities will be convertible into the Underlying Securities
in accordance with the terms of such
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Securities {if convertible debt will be issued- "and the Indenture" will be
added]; the Underlying Securities initially issuable upon exercise or
conversion of such Securities have been duly authorized and reserved for
issuance and upon such exercise or conversion and, when issued upon such
exercise or conversion, will be validly issued, fully paid and non-assessable;
the outstanding Underlying Shares have been duly authorized and validly issued,
are fully-paid and non-assessable and conform to the description thereof
contained in the Prospectus; and no preemptive rights of stockholders exist
with respect to such convertible Securities or the Underlying Securities].
(e) The Securities conform with the statements concerning them in the
Prospectus.
(f) 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 Statements
contain 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") [if debt securities will be
issued-", the Trust Indenture Act" will be inserted] or the Act, as applicable,
and the Rules and Regulations of the Commission thereunder. Neither of the
Registration Statements, as of its effective date, nor the Prospectus nor any
supplement thereto, as of the date it is filed with the Commission, 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 representations or warranties as to information contained in or
omitted from the Registration Statements or the Prospectus, in reliance upon,
and in conformity with, written information furnished to the Company by or on
behalf of the Underwriter(s), for use in the preparation thereof [if debt
securities will be issued, then the following will be inserted- ; and provided,
further, that the Company makes no representations or warranties as to that
part of the Registration Statements that constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee].
(g) The consolidated financial statements of the Company and its
subsidiaries, together with related notes and schedules, as incorporated by
reference in the Prospectus, 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 Prospectus present fairly in all
material respects the information shown therein and have been compiled on a
basis consistent with the financial
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statements presented therein. The pro forma condensed consolidated financial
statements of the Company and its subsidiaries and the related notes thereto,
included as Exhibit 99.4 to the Current Report on Form 8-K/A dated October 1,
1998 and filed with the Commission on October 19, 1998, present fairly the
information contained therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly presented on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. [If other financial statements are
incorporated by reference into the Registration Statements, additional
representations and warranties as to such financial statements will be added.]
(h) After due inquiry, the Company has no reason to believe that the
consolidated financial statements of each of Outdoor Communications, Inc. and
subsidiaries, OCI Corp. of Michigan and subsidiaries and Mass Communications
Corp. and subsidiary (collectively, the "OCI Financials") included as Exhibit
99.4 to the Company's Current Report on Form 8-K/A dated October 1, 1998 and
filed with the Commission on October 19, 1998, do not fairly present the
consolidated financial position, results of operations, changes in
stockholder's equity and cash flows of the entities described therein on the
basis described therein at the respective dates or for the respective periods
to which they apply or that the OCI Financials have not been prepared in
accordance with generally accepted accounting principles consistently applied,
except as described therein. [If other financial statements are incorporated by
reference into the Registration Statements, additional representations and
warranties as to such financial statements will be added.]
(i) 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 result in a Material Adverse Change.
(j) 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 1999 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 1999
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 1999 Registration
Statement, with such exceptions as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change or materially
impair the value of such leasehold estate to the Company or such Subsidiary.
(k) 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
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to file or defaults in payment of a character which would not reasonably be
expected to result in a Material Adverse Change.
(l) 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 (i) its
certificate of incorporation or by-laws or (ii) 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, in the case of (ii) which default
would reasonably be expected to result in a Material Adverse Change. 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 reasonably be expected to result in a
Material Adverse Change.
(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 consummation of the transactions herein
contemplated (except such steps as may be required by the National Association
of Securities Dealers, Inc. (the "NASD") or may be necessary to qualify the
Securities for public offering by the Underwriter(s) 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, 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 reasonably be expected to
result in a Material Adverse Change.
(o) 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 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, reasonably be expected to
result in a Material Adverse Change.
(p) KPMG LLP, who have certified the financial statements of the
Company and the OCI Financials filed with the Commission as part of, or
incorporated by reference in, the Registration Statements, are independent
public accountants as required by the Act and the Rules and Regulations.
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(q) The Company has never been, is not now, and immediately after the
sale of the Securities under this Agreement will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(r) The Securities of the Company to be sold under this Agreement have
been approved for listing on the [Nasdaq Stock Market] [_______ Stock Exchange]
subject to official notice of issuance.
[If guaranteed debt securities will be issued, then the following provision
will be added:
(s) None of the Registrants is, nor will any of them be, after giving
effect to the issuance of the Securities and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby including without limitation the issuance of the Guarantees
(i) insolvent, (ii) left with unreasonably small capital with which to engage
in its anticipated businesses or (iii) incurring debts beyond its ability to
pay such debts as they mature.]
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) The Securities. On the basis of the representations, warranties
and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Company agrees to issue and sell to the
Underwriter(s), and the Underwriter(s), severally and not jointly, agree to
purchase from the Company, the Securities [set forth opposite the name of such
Underwriter of Schedule III hereto.]. [If capital stock will be issued and
sold, then the following will be inserted-The purchase price per share to be
paid by the Underwriter(s) to the Company shall be $___ per share.] [If debt
securities will be issued, the following will be inserted-"The purchase price
per unit Security shall be ___% of the principal amount thereof."]
(b) The Closing Date. Delivery of certificates for the Securities to
be purchased by the Underwriter(s) and payment therefor shall be made at the
offices of the Underwriter(s), _____________________ (or such other place as
may be agreed to by the Company and the Underwriter(s)) at ____ a.m.
___________ time, on __________ __, ____ or such other time and date not later
than ____ a.m. ____________ time, on ________ __, ____ as the Underwriter(s)
shall designate by notice to the Company (the time and date of such closing are
called the "Closing Date").
[If the Underwriter(s) will be granted an over-allotment option to purchase
additional Securities, then the references to "Securities" in paragraphs 2(a)
and 2(b) above will be changed to "Firm Securities" and the following provision
will be added as paragraph (c).]
[(c) The Option Securities; the Option Closing Date. In addition, on
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company
hereby grants an option to the Underwriter(s) to purchase up to [If capital
stock will be issued and sold, then the
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following will be inserted-"an aggregate of [___] shares of Option Securities"]
[If debt securities will be issued, then the following will be
inserted-"$___________ aggregate additional principal amount of Option
Securities"] from the Company at the per Security purchase price to be paid by
the Underwriter(s) for the Firm Securities. The option granted hereunder is for
use by the Underwriter(s) solely in covering any over-allotments in connection
with the sale and distribution of the Firm Securities. The option granted
hereunder may be exercised at any time (but not more than once) upon notice by
the Underwriter(s) to the Company, which notice may be given at any time within
30 days from the date of this Agreement. Once given in writing, such notice
shall be irrevocable. Such notice shall set forth (i) the aggregate number or
amount of Option Securities as to which the Underwriter(s) are exercising the
option, (ii) the names and denominations in which the certificates for the
Option Securities are to be registered and (iii) the time, date and place at
which such certificates will be delivered (which time and date may be
simultaneous with, but not earlier than, the Closing Date; and in such case the
term "Closing Date" shall refer to the time and date of delivery of
certificates for the Firm Securities and the Option Securities). Such time and
date of delivery, if subsequent to the Closing Date, is called the "Option
Closing Date" and shall be determined by the Underwriter(s) and shall not be
earlier than three nor later than five full business days after delivery of
such notice of exercise, except that if such time and date of delivery are to
occur simultaneously with the Closing Date, the Underwriter(s) shall give the
Company at least one business day's notice thereof.]
(d)[e] Payment for the Securities. Payment for the Securities shall be
made at the Closing Date (and, if applicable, at the Option Closing Date) by
wire transfer of immediately available funds to the order of the Company.
(e)[f] Delivery of the Securities. The Company shall deliver, or cause
to be delivered, to the Underwriter(s) for the account of the Underwriter(s)
certificates for the Firm Securities at the Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. [If the Underwriter(s) will be granted
an over-allotment option, then the following will be inserted-"The Company
shall also deliver, or cause to be delivered, to the Underwriter(s) for the
account(s) of the Underwriter(s), certificates for the Option Securities that
the Underwriter(s) have agreed to purchase at the Closing Date or the Option
Closing Date, as the case may be, against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price
therefor."] The [if capital stock will be issued, the following will be
inserted-"certificates for the"] Securities shall be in definitive [if debt
securities will be issued, then the following will be inserted-"fully
registered"] form and registered in such names and denominations as the
Underwriter(s) shall have requested at least two full business days prior to
the Closing Date (or the Option Closing Date, as the case may be) and shall be
made available for inspection on the business day preceding the Closing Date
(or the Option Closing Date, as the case may be) at a location in New York City
as the Underwriter(s) may designate. Time shall be of the essence, and delivery
at the time and place specified in this Agreement is a further condition to the
obligations of the Underwriter(s).
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[If "book entry" debt securities will be issued, then the immediately preceding
paragraph will be replaced with the following paragraph:
"The Company shall deliver, or cause to be delivered for the
account(s) of the Underwriter(s) the Securities being purchased on the Closing
Date in the form of one or more permanent global Securities in definitive form
registered in the name of Cede & Co., as custodian for The Depository Trust
Company, as Depository ("DTC"), against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price
therefor. [If the Underwriter(s) will be granted an over-allotment option, then
the following provision will be inserted-"The Company shall also deliver, or
cause to be delivered, for the account(s) of the Underwriter(s), the Securities
being purchased on the Option Closing Date in the form of one or more permanent
global Securities registered in the name of DTC, against the irrevocable
release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. Interests in global Securities will be held only in
book-entry form through DTC, except in limited circumstances described in the
Prospectus."].
SECTION 3. PUBLIC OFFERING OF THE SECURITIES.
The Underwriter(s) hereby advise the Company that the Underwriter(s)
intend to offer the Securities for sale as described in the Prospectus as soon
after this Agreement has been executed as the Underwriter(s), in their sole
judgment, have determined is advisable and practicable.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Underwriter(s) that:
(a) The Company will (i) 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, (ii) not file, prior to the termination of
the offering of the Securities by the Underwriter(s), any amendment to the
Registration Statements or supplement to the Prospectus or document
incorporated by reference therein of which the Underwriter(s) shall not
previously have been advised and furnished with a copy or to which the
Underwriter(s) shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations and (iii) 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 Securities by the
Underwriter(s).
(b) The Company will advise the Underwriter(s) promptly of
any request of the Commission for amendment of either 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
either Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that
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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.
(c) The Company will deliver to, or upon the order of, the
Underwriter(s) 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 Underwriter(s) may reasonably request;
provided, however, that if the Underwriter(s) are 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 the Underwriter(s)' request, but at
the expense of the Underwriter(s), the Company will prepare and deliver to the
Underwriter(s) such copies of an amended and supplemented Prospectus as you may
reasonably request.
(d) 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 Underwriter(s), 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 (i) prepare and file with the Commission an appropriate amendment to the
Registration Statements or supplement to the Prospectus or (ii) 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.
(e) 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
18 months after the effective date of the 1999 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 1999 Registration Statement, which earning statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(f) The Company will, for a period of five years from the
Closing Date, deliver to the Underwriter(s) 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 Exchange Act.
[If Class A Common Stock will be issued, then the following provision may be
inserted if considered necessary.]
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[(g) 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 the Underwriter(s) except that the Company may, without such
consent, (i) issue shares of Class A Common Stock in connection with the
pending 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 or any substitute plan]
SECTION 5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company 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 Underwriter(s)
copies of the 1999 Registration Statement, the Prospectus and this Agreement;
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
Securities; and the fees and expenses incurred with respect to the listing of
the Securities on [the Nasdaq Stock Market] [or, if applicable- the ___________
Stock Exchange]. The Company shall not, however, be required to pay for any of
the Underwriter(s)' expenses except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriter(s) pursuant to Section
11(a)(iv) or 11(a)(vi) hereof, or by reason of any failure, refusal or
inability on the part of the Company to deliver the Securities (unless such
failure to is due to the default or omission of the Underwriter(s)), then the
Company shall reimburse the Underwriter(s) for reasonable out-of-pocket
expenses, including reasonable fees and disbursements of counsel, reasonably
incurred in connection with investigating, marketing and proposing to market
the Securities or in contemplation of performing its obligations hereunder; but
the Company shall in no event be liable to the Underwriter(s) for damages on
account of loss of anticipated profits from, or related to, the sale by it of
the Securities.
SECTION 6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER(S).
The obligations of the Underwriter(s) to purchase the [Firm]
Securities on the Closing Date [and the Option Securities, if any, on 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:
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(a) The Registration Statements 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 Statements or otherwise) shall have been disclosed
to the Underwriter(s) and complied with to their reasonable satisfaction. No
stop order suspending the effectiveness of either Registration Statement shall
have been issued and no proceedings for that purpose shall have been taken or,
to the knowledge of the Company, shall be contemplated by the Commission.
(b) (i) The Underwriter(s) shall have received on the Closing Date [or
the Option Closing Date, as the case may be,] the opinion of Xxxxxx & Dodge
LLP, counsel for the Company, dated the Closing Date [or the Option Closing
Date, as the case may be,] addressed to the Underwriter(s) to the effect that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the state of its incorporation, with corporate power and
authority to own, and hold under lease, its properties and
conduct its business as described in the Prospectus.
[If capital stock will be issued, then paragraph 6(b)(i)(B)
and the first paragraph 6(b)(i)(C) below will be inserted.]
[(B) The Securities conform in all material respects to the
description thereof contained in the Prospectus; and the
certificates for the Securities are in due and proper form.
(C) The Securities 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 Securities or the issue and sale
thereof.]
[If convertible securities will be issued, then the following
provision will be added to paragraph 6(b)(i)(C).]
["The convertible Securities delivered on the Closing Date
{or the Option Closing Date, as the case may be,} are
convertible into the Underlying Shares of the Company in
accordance with-{if convertible preferred stock,
insert-"their terms"}-{if convertible debt, insert-"the terms
of the Indenture"}; the Underlying Shares initially issuable
upon conversion of such Securities have been duly authorized
and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully
paid and non-assessable; the outstanding Underlying Shares
have been authorized and validly issued, are fully paid and
non-assessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the
Securities or the Underlying Shares;]
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(D) The Registration Statements have 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.
(E) The Registration Statements, 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).
(F) Each document incorporated by reference in the
Registration Statements, the Prospectus and each amendment or
supplement thereto filed with 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).
(G) 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, and which conflict, breach or default could
reasonably be expected to result in a Material Adverse
Change.
(H) This Agreement has been duly authorized, executed and
delivered by the Company.
(I) 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 [if debt securities
will be issued, then the phrase "and the Indenture" will be
inserted] and the consummation by the Company of the
transactions herein [if debt securities
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will be issued, then the phrase "or therein" will be
inserted] 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).
(J) 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 1989.
[If debt securities will be issued, the following paragraphs
will be inserted as paragraphs 6(b)(i)(K) through (M)-
(K)(1) The Indenture has been duly qualified under the Trust
Indenture Act; (2) the Company has the corporate power and
authority to enter into the Indenture and to issue and sell
the Securities; (3) the Indenture has been duly authorized,
executed and delivered by the Company; (4) the Securities
have been duly authorized and when issued and executed and
authenticated in accordance with the provisions of the
Indenture and delivered to the Underwriter(s) in accordance
with the terms of this Agreement, will be entitled to the
benefits of the Indenture; and (5) the Indenture and the
Securities constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance
with its terms except that (I) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (II) the remedy
of specific performance and other forms of equitable relief
may be subject to certain equitable defenses and to the
discretion of the court before which the proceedings may be
brought; and (III) provisions requiring the payment of
default fees, redemption premiums, default interest and other
set payments may not be enforceable to the extent a court
might determine that such amounts constitute an alleged
penalty;
(L) The Securities and the Indenture and, if applicable, the
Guarantees conform in all material respects to the
descriptions thereof contained in the Prospectus;
(M) Neither the issuance, sale or delivery of the Securities,
nor the execution, delivery or performance of the Indenture,
or compliance by the Company with all provisions of the
Indenture, nor consummation by the Company of the
transactions contemplated hereby or thereby constitutes or
will constitute a violation or breach of, or a default under,
the certificate of incorporation or bylaws or other
organizational documents of the Company or any of the
Subsidiaries or any agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is
a party or by
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which any of them or any of their respective properties is
bound and that is an exhibit to the 1999 Registration
Statement, or will result in the creation or imposition of
any lien, charge or encumbrance pursuant to any such
agreement, indenture, lease or other instrument upon any
property or assets of the Company or any of the Subsidiaries,
nor will any such action result in any violation of any
existing law, regulation, ruling (assuming compliance with
all applicable state securities and Blue Sky laws), judgment,
injunction, order or decree known to such counsel, to be
applicable to the Company, the Subsidiaries or any of their
respective properties;
In rendering such opinion, Xxxxxx & Dodge LLP may rely as to
matters governed by laws other than the Delaware General Corporate Law or
Federal laws on local counsel in the relevant jurisdictions provided that in
each case Xxxxxx & Dodge LLP shall state that they believe that they and the
Underwriter(s) are justified in relying on such other counsel and such other
counsel's opinion is also delivered to the Underwriter(s). 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) either of the Registration Statements, 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 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 [if debt securities are being
used, then the following will be inserted "or the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee"]). 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.
(ii) The Underwriter(s) 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,
dated the Closing Date or the Option Closing Date, as the case may be,
addressed to the Underwriter(s) to the effect that:
(A) Based upon appropriate certificates of public officials
(which shall be furnished to the Underwriter(s) 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, partnership or other
organizational power and
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authority, as the case may be, to own, and hold under lease,
its properties and conduct its business as described in the
Prospectus.
(B) Based upon appropriate certificates of public officials
(which shall be furnished to the Underwriter(s) with the
opinion), the Company is duly qualified to transact business
as a foreign corporation, partnership or limited liability
company, as the case may be, 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 result in a Material
Adverse Change.
(C) 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.
(D) The Company's Class A and Class B Common Stock have been
duly authorized; the outstanding shares of its Class A Common
Stock have been duly authorized and validly issued and are
fully paid and non-assessable.
(E) Such counsel does not know of any contracts or documents
required to be filed as exhibits to or incorporated by
reference or described in the Prospectus which are not so
filed, incorporated by reference or described as required.
(F) 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.
[If guaranteed debt securities will be issued, then the
following additional opinions will be inserted-
(G) Neither the issuance or sale of the Guarantees, nor the
execution, delivery or performance of this Agreement, or the
Indenture, nor compliance by the Guarantors with all the
provisions of this Agreement or the Indenture, nor
consummation by the Guarantors of the transactions
contemplated hereby or thereby constitutes or will constitute
a violation or breach of, or a default under, the certificate
of incorporation or bylaws or
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other organizational documents of the Guarantors or any
agreement, indenture, lease or other instrument to which they
are a party or by which any of them or any of their
respective properties is bound and that is an exhibit to the
1999 Registration Statement, or will result in the creation
or imposition of any lien, charge or encumbrance pursuant to
any such agreement, indenture, lease or other instrument upon
any property or assets of any of the Guarantors, nor will any
such action result in any violation of any existing law,
regulation, ruling (assuming compliance with all applicable
state securities and Blue Sky laws), judgment, injunction,
order or decree known to such counsel to be applicable to the
Guarantors or any of their respective properties;
(H) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or
official is required to be obtained or made by any Guarantor
for the valid issuance and sale of the Guarantees pursuant to
this Agreement or the Indenture, except where such have been
obtained;
(I) The Guarantees have been duly authorized and validly
issued by each of the Guarantors, and when the Securities are
executed and authenticated in accordance with the Indenture
and delivered to you in accordance with the terms of this
Agreement, the Securities will be entitled to the benefits of
the Guarantees, and the Guarantees will constitute valid and
legally binding agreements of each of the Guarantors in
accordance with their terms set forth in the Indenture except
that (1) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (2) the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses
and to the discretion of the court before which the
proceedings may be brought;
(J) (1) Each of the Guarantors has the corporate or
partnership or other organizational power and authority, as
the case may be, to enter into this Agreement and to issue
its Guarantee as provided herein, and (2) this Agreement has
been duly authorized, executed and delivered by each of the
Guarantors; and
(K) (1) Each of the Guarantors has the corporate or
partnership or other organizational power and authority, as
the case may be, to enter into the Indenture, and (2) the
Indenture has been duly authorized, executed and delivered by
each of the Guarantors and is a legal, valid and binding
agreement of each of the Guarantors, enforceable against each
of them in accordance with its terms except that (I)
enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
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moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (II) the remedy
of specific performance and other forms of equitable relief
may be subject to certain equitable defenses and to the
discretion of the court before which the proceedings may be
brought.]
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) either of the
Registration Statements, 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 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).
(iii) The Underwriter(s) shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of Xxxxx X.
XxXxxxxx, Esquire, general counsel of the Company, dated the Closing Date or
the Option Closing Date, as the case may be, addressed to the Underwriter(s) to
the effect that: The statements in the Prospectus under the caption "Risk
Factors -- Regulation of Outdoor Advertising Impacts Our Operations," and
statements in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998 under the caption "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. [If this agreement is executed on a date after the Form 10-K for 1999
has been filed, the information to be set forth in this certificate will be
updated.]
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 him to believe that (A) either of the
Registration Statements, 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).
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(c) The Underwriter(s) shall have received from [name of
Underwriter(s)' counsel will be inserted], counsel for the Underwriter(s), an
opinion dated the Closing Date [or the Option Closing Date, as the case may
be,] in form and substance reasonably satisfactory to you.
(d) The Underwriter(s) shall have received on the Closing Date [or the
Option Closing Date, as the case may be,] a signed letter with respect to the
financial statements of the Company and certain financial information relating
to the Company included or incorporated by reference in the Prospectus from
KPMG 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 Underwriter(s) 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]. Such letter
shall be in form and substance reasonably satisfactory to the Underwriter(s).
The letter from KPMG LLP 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_________ ___, ____ and the unaudited income and cash flow information of the
Company for the _____ month periods ended ____________ ___, ____ and____,
included in the Registration Statements.
(e) The Underwriter(s) shall have received on the Closing Date [or the
Option Closing Date, as the case may be,] a signed letter from KPMG LLP, dated
the Closing Date [or the Option Closing Date, as the case may be,] relating to
the OCI Financials, 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 Underwriter(s) 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 such letter were required to be dated and
delivered on the Closing Date [or the Option Closing Date, as the case may be.]
Such letter shall be in form and substance reasonably satisfactory to the
Underwriter(s).
[If other financial statements are incorporated by reference into the
Registration Statements, additional conditions relating to consents of
independent accountants may be inserted.]
(f) The Underwriter(s) 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
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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 Statements have become effective under
the Act and no stop order suspending the effectiveness of either 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 of a character
required to be disclosed in the Prospectus which is not so disclosed; he does
not know of any material contract required to be filed as an exhibit to the
1999 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 Statements
and the Prospectus and, in his opinion, as of the effective date of the
Registration Statements, the statements contained in the Registration
Statements, including any documents incorporated by reference therein, were
true and correct in all material respects, and such Registration Statements 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 date of the Prospectus, 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.
(g) The Company shall have furnished to the Underwriter(s) such
further certificates and documents confirming the representations and
warranties contained herein and related matters as the Underwriter(s) may
reasonably have requested.
(h) The Securities to be issued and sold on the Closing Date [or the
Option Closing Date, as the case may be,] shall have been approved for listing
upon official notice of issuance on the [Nasdaq Stock Market] [the _______
Stock Exchange].
[If Class A Common Stock will be issued and the Underwriter(s) and the Company
agree that this provision is necessary, then the following will be inserted as
paragraph 6(i).]
[(i) The Underwriter(s) shall have received from each executive
officer, director and stockholder of the Company listed on Schedule II a letter
or letters, in form and substance reasonably satisfactory to the
Underwriter(s), 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 Class A Common Stock or derivative of Class A
Common Stock owned by such person (or as to which such person
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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 the
Underwriter(s) or except as may be expressly permitted by the terms of such
letter or letters. ]
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 Underwriter(s) hereunder may be terminated by the
Underwriter(s) 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 and the Underwriter(s) shall not be under any
obligation to each other (except to the extent provided in Sections 5, 8 [and
10] [if several Underwriters will purchase the Securities, then "and 10" will
be added] hereof).
SECTION 7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion of the
Securities 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 Statements shall have been issued and in effect or proceedings
therefor initiated or threatened.
SECTION 8. INDEMNIFICATION
(a) Indemnification of the Underwriter(s). The Company agrees to
indemnify and hold harmless each Underwriter, its officers and employees, and
each person, if any, who controls the Underwriter within the meaning of the Act
and the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which the Underwriter(s) or such controlling person may become
subject, under the Act, the Exchange Act or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based (i) upon
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statements, or any amendment thereto, including any
information deemed to be a part thereof pursuant to Rule 430A or Rule 434 under
the Act, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (ii) upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and to
reimburse the Underwriter and each such controlling person for any and all
reasonably expenses (including the reasonable fees and disbursements of counsel
chosen by the Underwriter) as such expenses are reasonably incurred by the
Underwriter or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability,
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expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by the
Underwriter(s) for use in the Registration Statements, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); and
provided, further, that with respect to the Prospectus, the foregoing indemnity
agreement shall not inure to the benefit of the Underwriter(s) from whom the
person asserting any loss, claim, damage, liability or expense purchased
Securities, or any person controlling the Underwriter(s), if copies of an
amendment or supplement to such Prospectus were timely delivered to the
Underwriter(s) pursuant to Section 2 and a copy of such amendment or supplement
was not sent or given by or on behalf of the Underwriter(s) to such person, at
or prior to the written confirmation of the sale of the Securities to such
person, and if such amendment or supplement would have cured the defect
contained in the Prospectus giving rise to such loss, claim, damage, liability
or expense. The indemnity agreement set forth in this Section 8(a) shall be in
addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. The
Underwriter(s) agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statements and each
person, if any, who controls the Company within the meaning of the Act or the
Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, or any such director, officer or controlling
person may become subject, under the Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Underwriter(s)), insofar as such loss, claim, damage, liability
or expense (or actions in respect thereof as contemplated below) arises out of
or is based upon any untrue or alleged untrue statement of a material fact
contained in the Registration Statements, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or arises out of or is
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 such
untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statements, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter(s) expressly for use therein; and to reimburse the Company, or any
such director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The Company hereby acknowledges that the only information that the
Underwriter(s) have furnished to the Company expressly for use in the
Registration Statements or the Prospectus (or any amendment or supplement
thereto) are the statements set forth as the [paragraph numbers will be
inserted] paragraphs under the caption "Underwriting" in the Prospectus
Supplement [if other
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information has been provided, it will be set forth here]; and the
Underwriter(s) confirms that such statements are correct. The indemnity
agreement set forth in this Section 8(b) shall be in addition to any
liabilities that the Underwriter(s) may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 8 or to
the extent it is not prejudiced as a result of such failure. In case any such
action is brought against any indemnified party and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it shall
elect, jointly with all other indemnifying parties similarly notified, 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; provided,
however, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of such indemnifying party's election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in which case the reasonable fees
and expenses of counsel shall be at the expense of the indemnifying party (it
being understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (together with local counsel)
approved by the indemnifying party and representing the indemnified parties who
are parties to such action).
(d) Settlements. The indemnifying party under this Section 8 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 agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been a
party and indemnity was or
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could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
SECTION 9. CONTRIBUTION.
If the indemnification provided for in Section 8 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriter(s), on
the other hand, from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company, on the one hand, and the Underwriter(s), on the other hand, in
connection with the statements or omissions or inaccuracies in the
representations and warranties herein 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, on the one hand,
and the Underwriter(s), on the other hand, in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company, and the total underwriting compensation actually received by the
Underwriter(s). The relative fault of the Company, on the one hand, and the
Underwriter(s), on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact or any such
inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company, on the one hand, or the Underwriter(s), on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c), any reasonable
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth
in Section 8(c) with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this Section 9, provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under Section 8(c) for purposes of
indemnification.
The Company and the Underwriter(s) agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
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[If several Underwriters will purchase and distribute the Securities, then the
following will be inserted as Section 10 and the subsequent sections will be
renumbered. If the Underwriter(s) will be granted an over-allotment option to
purchase additional Securities, then the bracketed language in Section 10 below
will be inserted:]
10. 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
Securities 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), 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 such amounts as may be agreed upon and
upon the terms set forth herein, the Securities 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 Securities agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of Securities
with respect to which such default shall occur does not exceed 10% of the
[Firm] Securities [or Option Securities, as the case may be,] covered hereby,
the other Underwriters shall be obligated, severally, in proportion to the
respective numbers of [Firm] Securities [or Option Securities, as the case may
be,] which they are obligated to purchase hereunder, to purchase the Securities
which such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate number of shares of [Firm] Securities [or Option Securities, as
the case may be,] with respect to which such default shall occur exceeds 10% of
the [Firm] Securities [or Option Securities, as the case may be,] covered
hereby, the Company 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 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 10, 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 10 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.]
SECTION 10 [11]. NOTICES.
All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Underwriter(s):
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[Name and address of Representative(s) of the Underwriter(s)]
with a copy to:
[Name and address of Underwriter(s)'s counsel]
If to the Company:
Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx, 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Xx., President
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 11 [12]. TERMINATION.
This Agreement may be terminated by you by notice to the Company as
follows:
(a) at any time after the date hereof and prior to the Closing if any
of the following has occurred: (i) 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 Securities
impracticable, (ii) trading in securities on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited (other than limitations on hours or numbers of days of
trading or the application of "circuit breakers") or minimum prices shall have
been established for securities on either such Exchange, (iii) declaration of a
banking moratorium by either federal or New York State authorities, (iv) 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); (v) the taking
of any action by any governmental body or agency in respect of
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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
(vi) any litigation or proceeding is pending or threatened against the
Underwriter(s) 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 Section 6 [If Section 10 "Default of Underwriters"
is included, then the following phrase will be inserted-"and Section 10"] of
this Agreement.
This Agreement also may be terminated by you, by notice to the Company as to
any obligation of the Underwriter(s) to purchase the Option Securities, 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 Section 6 [If
Section 10 "Default of Underwriters" is included, then the following phrase
will be inserted-"and Section 10"] of this Agreement.
SECTION 12 [13]. SUCCESSORS.
This Agreement will inure to the benefit of and be binding upon the
parties hereto, and to the benefit of the employees, officers and directors and
controlling persons referred to in Section 8, and in each case their respective
successors, and personal representatives, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
purchaser of the Securities as such from the Underwriter(s) merely by reason of
such purchase.
SECTION 13 [14]. PARTIAL UNENFORCEABILITY.
The invalidity or unenforceability of any Section, paragraph or
provision of this Agreement shall not affect the validity or enforceability of
any other Section, paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
SECTION 14 [15]. GOVERNING LAW PROVISIONS. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
SECTION 15 [16]. GENERAL PROVISIONS.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts, each one of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition
herein (express or implied) may be waived unless
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waived in writing by each party whom the condition is meant to benefit. The
Table of Contents and the Section headings herein are for the convenience of
the parties only and shall not affect the construction or interpretation of
this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
XXXXX ADVERTISING COMPANY
By:
---------------------
Name:
Title:
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The foregoing Underwriting Agreement is hereby confirmed and accepted
by the Underwriter(s) in _____________, ______________ as of the date first
above written.
[Underwriter(s)]
By:
-----------------------------
Name:
Title:
31
33
SCHEDULE I
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 Xxxxxxx, 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
TLC Properties, Inc. Louisiana
Missouri Logos, Inc. Missouri
Missouri Logos, a Partnership Missouri
Nebraska Logos, Inc. Nebraska
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 Partner, Inc. Louisiana
Lamar Tennessee Limited Partnership Tennessee
Lamar Tennessee Limited Partnership II Tennessee
Lamar Texas General Partner, Inc. Louisiana
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. New Jersey
South Carolina Logos, Inc. South Carolina
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
34
State of Other Jurisdiction of
Name Incorporation or Organization
---- -----------------------------
Canadian TODS Limited Nova Scotia, Canada
Nevada Logos, Inc. Nevada
Kentucky Logos, Inc. Kentucky
Florida Logos, Inc. Florida
Lamar Electrical, Inc. Louisiana
Xxxxx Advertising of South Dakota, Inc. South Dakota
TLC Properties, L.L.C. Louisiana
Lamar OCI South Corporation Mississippi
Lamar OCI North Corporation Delaware
Xxxxx Advertising of Greenville, Inc. Mississippi
Xxxxx Advertising of West Virginia, Inc. West Virginia
Lamar Advertising of Ashland, Inc. Kentucky
American Signs, Inc. Washington
* 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.
35
SCHEDULE II
Lock-Up Letters
[List to be Provided]
36
SCHEDULE III
Underwriters
