Exhibit 1.1
1,750,000 SHARES
XXXX MEDIA CORPORATION
COMMON STOCK
(NO PAR VALUE)
EQUITY UNDERWRITING AGREEMENT
__________, 1999
Wedbush Xxxxxx Securities Inc.
Pacific Crest Securities Inc.
As Representatives of the
Several Underwriters
c/o Wedbush Xxxxxx Securities Inc.
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Xxxx Media Corporation, an Oregon corporation (the "Company"), and
certain shareholders of the Company (the "Selling Shareholders") propose to
sell to the several underwriters (the "Underwriters") named in Schedule I
hereto for whom you are acting as representatives (the "Representatives") an
aggregate of 1,750,000 shares of the Company's Common Stock, no par value
(the "Firm Shares"), of which 1,000,000 shares will be sold by the Company
and 750,000 shares will be sold by the Selling Shareholders. The respective
amounts of the Firm Shares to be so purchased by the several Underwriters are
set forth opposite their names in Schedule I hereto, and the respective
amounts to be sold by the Selling Shareholders are set forth opposite their
names in Schedule II hereto. The Company and the Selling Shareholders are
sometimes referred to herein collectively as the "Sellers." The Company and
certain Selling Shareholders also propose to sell at the Underwriters' option
an aggregate of up to 262,500 additional shares of the Company's Common Stock
(the "Option Shares") as set forth below.
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As the Representatives, you have advised the Company and the Selling
Shareholders (a) that you are authorized to enter into this Agreement on
behalf of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Firm
Shares set forth opposite their respective names in Schedule I, plus their
pro rata portion of the Option Shares if you elect to exercise the
over-allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the
"Shares."
In consideration of the mutual agreements contained herein and of
the interests of the parties in the transactions contemplated hereby, the
parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDERS.
(A) The Company represents and warrants to each of the
Underwriters as follows:
(i) A registration statement on Form S-1 (File No. 333-79367)
with respect to the Shares has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"),
and the Rules and Regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has been filed with
the Commission. The Company has complied with the conditions for the use of
Form S-1. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules
and Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by
the Company to you. Such registration statement, together with any
registration statement filed by the Company pursuant to Rule 462(b) of the
Act, herein referred to as the "Registration Statement," which shall be
deemed to include all information omitted therefrom in reliance upon Rule
430A and contained in the Prospectus referred to below, has become effective
under the Act and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. "Prospectus" means the form
of prospectus first filed with the Commission pursuant to Rule 424(b). Each
preliminary prospectus included in the Registration Statement prior to the
time it becomes effective is herein referred to as a "Preliminary Prospectus."
(ii) The Company has been duly organized and is validly existing
as a corporation under the laws of the State of Oregon, with corporate power
and authority to own or lease its properties and conduct its business as
described in the Registration
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Statement. Each of the subsidiaries of the Company as listed in Exhibit 21.1
to Item 16(a) of the Registration Statement (collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or lease its
properties and conduct its business as described in the Registration
Statement. The Subsidiaries are the only subsidiaries, direct or indirect, of
the Company. The Company and each of the Subsidiaries are duly qualified to
transact business in all jurisdictions in which the conduct of their business
requires such qualification. The outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable and to the extent shown in Exhibit A hereto are owned
by the Company or another Subsidiary free and clear of all liens,
encumbrances, equities and claims, except that all of such shares secure the
Company's obligations to its primary lender; and no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock or ownership
interests in the Subsidiaries are outstanding.
(iii) The outstanding shares of Common Stock of the Company,
including all shares to be sold by the Selling Shareholders, have been duly
authorized and validly issued and are fully paid and non-assessable; the
portion of the Shares to be issued and sold by the Company have been duly
authorized and when issued and paid for as contemplated herein will be
validly issued, fully paid and non-assessable; and no preemptive rights of
shareholders exist with respect to any of the Shares or the issue and sale
thereof. Neither the filing of the Registration Statement nor the offering or
sale of the Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for or relating
to the registration of any shares of Common Stock.
(iv) The information set forth under the caption "Capitalization"
in the Prospectus, with respect to the capital stock of the Company, is true
and correct, and, with respect to all other information set forth therein, is
true and correct in all material respects. All of the Shares conform to the
description thereof contained in the Registration Statement. The form of
certificates for the Shares conforms to the corporate law of the jurisdiction
of the Company's incorporation.
(v) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Shares nor, to the Company's best knowledge, instituted proceedings for that
purpose. The Registration Statement contains, and the Prospectus and any
amendments or supplements thereto will contain, all statements which are
required to be stated therein by, and will conform to, the requirements of
the Act and the Rules and Regulations. The
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Registration Statement and any amendments thereto do not contain, and will
not contain, any untrue statement of a material fact and do not omit, and
will not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and
any amendments and supplements thereto do not contain, and will not contain,
any untrue statement of material fact, and do not omit, and will not omit, to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from
the Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives, specifically for use in the preparation thereof.
(vi) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set forth in the
Registration Statement, present fairly the financial position and the results
of operations and cash flows of the Company and the consolidated
Subsidiaries, at the indicated dates and for the indicated periods. Such
financial statements and related schedules have been prepared in accordance
with generally accepted principles of accounting, consistently applied
throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods
have been made. The summary financial and statistical data included in the
Registration Statement presents fairly the information shown therein and such
data has been compiled on a basis consistent with the financial statements
presented therein and the books and records of the Company. The pro forma
financial statements and other pro forma financial information included in
the Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements, have been
properly compiled on the pro forma bases described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(vii) PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, who
have certified certain of the financial statements filed with the Commission
as part of the Registration Statement, are independent public accountants as
required by the Act and the Rules and Regulations.
(viii) There is no action, suit, claim or proceeding pending
or, to the knowledge of the Company, threatened against the Company or any of
the
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Subsidiaries before any court or administrative agency or otherwise which if
determined adversely to the Company or any of its Subsidiaries might result
in any material adverse change in the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company and of the Subsidiaries, taken as a whole, or to
prevent the consummation of the transactions contemplated hereby, except as
set forth in the Registration Statement.
(ix) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the financial
statements (or as described in the Registration Statement) hereinabove
described, subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except those reflected in such financial statements (or as described in
the Registration Statement) or which are not material in amount. The Company
and the Subsidiaries occupy their leased properties under valid and binding
leases conforming in all material respects to the descriptions thereof set
forth in the Registration Statement.
(x) The Company and the Subsidiaries have filed all Federal,
State, local and foreign 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. All tax
liabilities have been adequately provided for in the financial statements of
the Company, and the Company does not know of any actual or proposed
additional material tax assessments.
(xi) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or supplemented,
there has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise), or prospects of the Company and its Subsidiaries, taken as a
whole, whether or not occurring in the ordinary course of business, and there
has not been any material transaction entered into or any material
transaction that is probable of being entered into by the Company or the
Subsidiaries, other than transactions in the ordinary course of business and
changes and transactions described in the Registration Statement, as it may
be amended or supplemented. The Company and the Subsidiaries have no material
contingent obligations which are not disclosed in the Company's financial
statements which are included in the Registration Statement.
(xii) Neither the Company nor any of the Subsidiaries is, or
with the giving of notice or lapse of time or both, will be, in violation of
or in default under its Articles of Incorporation or Bylaws, in each case as
amended, or under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a
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party or by which it, or any of its properties, is bound and which default is
of material significance in respect of the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company and the Subsidiaries, taken as a whole. The
execution and delivery of this Agreement and the consummation of the
transactions herein contemplated and the fulfillment of the terms hereof will
not conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any Subsidiary is a
party (other than under change of control provisions of office and storage
leases and agreements with advertisers that are not material, individually or
in the aggregate, to the Company), or of the Articles of Incorporation or
Bylaws of the Company or any order, rule or regulation applicable to the
Company or any Subsidiary of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
(xiii) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative
or other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated (except such additional steps as may be
required by the Commission, the National Association of Securities Dealers,
Inc. (the "NASD") or such additional steps as may be necessary to qualify the
Shares for public offering by the Underwriters under state securities or Blue
Sky laws) has been obtained or made and is in full force and effect.
(xiv) The Company and each of the Subsidiaries holds all
material licenses, certificates and permits from governmental authorities
which are necessary to the conduct of their businesses; and, to the Company's
best knowledge, neither the Company nor any of the Subsidiaries has infringed
any patents, patent rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company and the Subsidiaries,
taken as a whole. The Company knows of no material infringement by others of
patents, patent rights, trade names, trademarks or copyrights owned by or
licensed to the Company.
(xv) Neither the Company nor, to the Company's knowledge, any of
its affiliates, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of
the price of the shares of Common Stock to facilitate the sale or resale of
the Shares. The Company acknowledges that the Underwriters may engage in
passive market-making transactions in the Shares on The Nasdaq Stock Market
in accordance with Regulation M under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
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(xvi) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940, as amended (the "1940 Act"), and the rules and regulations of the
Commission thereunder.
(xvii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xviii) The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
reasonably adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for companies
engaged in similar industries.
(xix) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
(xx) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's
officers, directors or 5% or greater securityholders, except as set forth in
the Registration Statement.
(b) Each of the Selling Shareholders severally represents
and warrants as follows:
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(i) Such Selling Shareholder now has and at the Closing Date
and the Option Closing Date, as the case may be (as such dates are
hereinafter defined) will have (i) good and marketable title to the Firm
Shares and the Option Shares to be sold by such Selling Shareholder, free and
clear of any liens, encumbrances, equities and claims, and (ii) full right,
power and authority to effect the sale and delivery of such Firm Shares and
Option Shares; and upon the delivery of, against payment for, such Firm
Shares and Option Shares pursuant to this Agreement, the Underwriters will
acquire good and marketable title thereto, free and clear of any liens,
encumbrances, equities and claims.
(ii) Such Selling Shareholder has full right, power and
authority to execute and deliver this Agreement, the Power of Attorney and
the Custody Agreement referred to below and to perform its obligations under
such Agreements. The execution and delivery of this Agreement and the
consummation by such Selling Shareholder of the transactions herein
contemplated and the fulfillment by such Selling Shareholder of the terms
hereof will not require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other governmental
body (except as may be required under the Act or state securities or Blue Sky
laws) and will not result in a breach of any of the terms and provisions of,
or constitute a default under, organizational documents of such Selling
Shareholder, if not an individual, or any indenture, mortgage, deed of trust
or other agreement or instrument to which such Selling Shareholder is a
party, or of any order, rule or regulation applicable to such Selling
Shareholder of any court or of any regulatory body or administrative agency
or other governmental body having jurisdiction.
(iii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to, or which has
constituted, or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of the Common Stock of the Company
and, other than as permitted by the Act, the Selling Shareholder will not
distribute any prospectus or other offering material in connection with the
offering of the Shares.
(iv) Without having undertaken to determine independently the
accuracy or completeness of either the representations and warranties of the
Company contained herein or the information contained in the Registration
Statement, such Selling Shareholder has no reason to believe that the
representations and warranties of the Company contained in this Section 1 are
not true and correct and is familiar with the Registration Statement and has
no knowledge of any material fact, condition or information not disclosed in
the Registration Statement which has adversely affected or may adversely
affect the business of the Company or any of the Subsidiaries; and the sale
of the Firm Shares and the Option Shares by such Selling Shareholder
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pursuant hereto is not prompted by any adverse information concerning the
Company or any of the Subsidiaries which is not set forth in the Registration
Statement. The information pertaining to such Selling Shareholder under the
caption "Principal and Selling Shareholders" in the Prospectus is complete
and accurate in all material respects.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES AND THE OPTION
SHARES.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth,
the Sellers agree to sell to the Underwriters and each Underwriter agrees,
severally and not jointly, to purchase, at a price of $_____ per share, the
number of Firm Shares set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with Section 9
hereof. The number of Firm Shares to be purchased by each Underwriter from
each Seller shall be as nearly as practicable in the same proportion to the
total number of Firm Shares being sold by each Seller as the number of Firm
Shares being purchased by each Underwriter bears to the total number of Firm
Shares to be sold hereunder. The obligations of the Company and of each of
the Selling Shareholders shall be several and not joint.
(b) Certificates in negotiable form for the total number of
the Shares to be sold hereunder by the Selling Shareholders have been placed
in custody with American Securities Transfer & Trust, Inc. as custodian (the
"Custodian") pursuant to the Custody Agreement executed by each Selling
Shareholder for delivery of all Firm Shares and any Option Shares to be sold
hereunder by the Selling Shareholders. Each of the Selling Shareholders
specifically agrees that the Firm Shares and any Option Shares represented by
the certificates held in custody for the Selling Shareholders under the
Custody Agreement are subject to the interests of the Underwriters hereunder,
that the arrangements made by the Selling Shareholders for such custody are
to that extent irrevocable, and that the obligations of the Selling
Shareholders hereunder shall not be terminable by any act or deed of the
Selling Shareholders (or by any other person, firm or corporation, including
the Company, the Custodian or the Underwriters) or by operation of law
(including the death of an individual Selling Shareholder or the dissolution
of a corporate Selling Shareholder) or by the occurrence of any other event
or events, except as set forth in the Custody Agreement. If any such event
should occur prior to the delivery to the Underwriters of the Firm Shares or
the Option Shares hereunder, certificates for the Firm Shares or the Option
Shares, as the case may be, shall be delivered by the Custodian in accordance
with the terms and conditions of this Agreement as if such event has not
occurred. The
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Custodian is authorized to receive and acknowledge receipt of the proceeds of
sale of the Shares held by it against delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be
made in New York Clearing House (next-day) funds to an account designated by
the Company for the shares to be sold by it and to an account designated by
the Custodian for the shares to be sold by the Selling Shareholders, in each
case against delivery of certificates therefor to the Representatives for the
several accounts of the Underwriters. Such payment and delivery shall be made
at the offices, Wedbush Xxxxxx Securities Inc., 0000 Xxxxxxxx Xxxx., Xxx
Xxxxxxx, Xxxxxxxxxx at 7:00 a.m., Los Angeles time, on the third business day
after the date of this Agreement or at such other time and date not later
than five business days thereafter as you and the Company shall agree upon,
such time and date being herein referred to as the "Closing Date." (As used
herein, "business day" means a day on which the New York Stock Exchange is
open for trading and on which banks in New York are open for business and not
permitted by law or executive order to be closed.)
(d) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein
set forth, the Company and the Selling Shareholders listed on Schedule III
hereto hereby grant an option to the several Underwriters to purchase the
Option Shares at the price per share as set forth in the first paragraph of
this Section 2. The maximum number of Option Shares to be sold by the Company
and such Selling Shareholders is set forth opposite their respective names on
Schedule III hereto. The option granted hereby may be exercised in whole or
in part by giving written notice (i) at any time before the Closing Date and
(ii) only once thereafter within 30 days after the date of this Agreement, by
you, as Representatives of the several Underwriters, to the Company, the
Attorney (as defined in the Custody Agreement), and the Custodian, setting
forth the number of Option Shares as to which the several Underwriters are
exercising the option, the names and denominations in which the Option Shares
are to be registered and the time and date at which such certificates are to
be delivered. If the option granted hereby is exercised in part, the
respective number of Option Shares to be sold by the Company and each of the
Selling Shareholders listed in Schedule III hereto shall be determined on a
pro rata basis in accordance with the percentages set forth opposite their
names on Schedule III hereto, adjusted by you in such manner as to avoid
fractional shares. The time and date at which certificates for Option Shares
are to be delivered shall be determined by the Representatives but shall not
be earlier than three nor later than 10 full business days after the exercise
of such option, nor in any event prior to the Closing Date (such time and
date being herein referred to as the "Option Closing Date"). If the date of
exercise of the option is three or more days before the Closing Date, the
notice of exercise shall set the Closing Date as the Option Closing Date.
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The number of Option Shares to be purchased by each Underwriter shall be in
the same proportion to the total number of Option Shares being purchased as
the number of Firm Shares being purchased by such Underwriter bears to the
total number of Firm Shares, adjusted by you in such manner as to avoid
fractional shares. The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the
Firm Shares by the Underwriters. You, as Representatives of the several
Underwriters, may cancel such option at any time prior to its expiration by
giving written notice of such cancellation to the Company and the Attorney.
To the extent, if any, that the option is exercised, payment for the Option
Shares shall be made on the Option Closing Date in New York Clearing House
(next-day) funds drawn to the order of the Company for the Option Shares to
be sold by it and to the order of "American Securities Transfer & Trust,
Inc., as Custodian" for the Option Shares to be sold by the Selling
Shareholders against delivery of certificates therefor through the facilities
of the Depository Trust Company, New York, New York.
(e) If any Selling Shareholder shall fail at the Closing Date
or Option Closing Date to sell and deliver the number of Firm Shares or
Option Shares that such Selling Shareholder is obligated to sell, the Company
and the non-defaulting Selling Shareholders shall have the right (but not the
obligation), within 24 hours thereafter, to make arrangements for one or more
of the Company and the non-defaulting Selling Shareholders to sell upon the
terms set forth in this Agreement all, but not less than all, of such
defaulted Firm Shares or Option Shares in such amounts as may be agreed upon
and to which the Underwriters do not reasonably object; if, however, such
arrangements have not been completed within such 24-hour period, then the
Underwriters may, at their option, by notice from the Representatives to the
Company, either (a) terminate this Agreement without any liability on the
part of any non-defaulting party except to the extent provided in Section 5
and Section 8 or (b) elect to purchase the Firm Shares or Option Shares that
the Company and the remaining Selling Shareholders have agreed to sell
pursuant to this Agreement. In the event of a default under this Section 2(e)
that does not result in the termination of this Agreement, either the
Underwriters or the Company shall have the right to postpone the Closing Date
or Option Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
If the Company shall fail at the Closing Date or Option Closing
Date to sell and deliver the number of Firm Shares or Option Shares that it
is obligated to sell, then this Agreement shall terminate without any
liability on the part of any non-defaulting party except to the extent
provided in Section 5 and except that the provisions of Section 8 shall
remain in effect.
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No action taken pursuant to this Section 2(e) shall relieve
the Company or any Selling Shareholder so defaulting from liability, if any, in
respect of such default.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it advisable to
do so. The Firm Shares are to be initially offered to the public at the public
offering price set forth in the Prospectus. The Representatives may from time to
time thereafter change the public offering price and other selling terms. To the
extent, if at all, that any Option Shares are purchased pursuant to Section 2
hereof, the Underwriters will offer them to the public on the foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
(a) The Company covenants and agrees with the several
Underwriters that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form
approved by the Representatives containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A of
the Rules and Regulations, and (B) not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Representatives shall not
previously have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment thereto shall
have become effective, (B) of receipt of any comments from the Commission, (C)
of any request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, and (D) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of the institution of
any proceedings for that
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purpose. The Company will use its best efforts to prevent the issuance of any
such stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Representatives may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process or subject itself to taxation in any jurisdiction
where it is not now so qualified or required to file such a consent or subject
to taxation. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Representatives may
reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary Prospectus
as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives during the period when delivery of a
Prospectus is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representatives may
reasonably request. The Company will deliver to the Representatives at or before
the Closing Date, one signed copy of the Registration Statement and two signed
copies of all amendments thereto including all exhibits filed therewith, and
will deliver to the Representatives such number of copies of the Registration
Statement (including such number of copies of the exhibits filed therewith that
may reasonably be requested), and of all amendments thereto, as the
Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary at
any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the Prospectus so that
the
13
Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with the law.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(vii) Prior to the Closing Date, the Company will furnish to
the Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(viii) Except as otherwise provided in a prior written consent
of Wedbush Xxxxxx Securities Inc. after the date hereof, no offering, sale,
short sale or other disposition of any shares of Common Stock of the Company or
other securities convertible into or exchangeable or exercisable for shares of
Common Stock or derivative of Common Stock (or agreement for such) will be made
for a period of 90 days after the date of this Agreement, directly or
indirectly, by the Company, other than: (a) pursuant to this Agreement; (b)
Common Stock contributed by the Company to its 401(k) plan; and (c) pursuant to
stock options granted by the Company to employees and directors in the ordinary
course of business.
(ix) The Company will use its best efforts to list, subject to
notice of issuance, the Shares on The Nasdaq National Market.
(x) The Company has caused each officer, director and
shareholder of the Company set forth on Schedule IV hereto to furnish to you, on
or prior to the date of this Agreement, a letter or letters, in form and
substance satisfactory to the Underwriters, pursuant to which each 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 shares of Common Stock
or derivative of Common Stock owned by such person or request the registration
for the offer or sale of any of the foregoing (or as to which such person has
the right to direct the disposition of) for a period of 90 days after the date
of this Agreement, directly or indirectly, except with the prior written consent
of Wedbush Xxxxxx Securities Inc. ("Lockup Agreements").
14
(xi) The Company shall apply the net proceeds of its sale of
the Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with
the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other capital stock of the Company or
other securities convertible, exchangeable or exercisable for Common Stock or
derivative of Common Stock owned by the Selling Shareholder or request for the
registration for the offer or sale of any of the foregoing (or as to which the
Selling Shareholder has the right to direct the disposition of) will be made for
a period of 90 days after the date of this Agreement, directly or indirectly, by
such Selling Shareholder otherwise than hereunder or with the prior written
consent of Wedbush Xxxxxx Securities Inc.
(ii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of
1983 with respect to the transactions herein contemplated, each of the Selling
Shareholders agrees to deliver to you prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-8 or W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
15
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Sellers under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company; the cost
of printing and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the Prospectus, this
Agreement, the Underwriters' Selling Memorandum, the Underwriters' Invitation
Letter, the Listing Application, the Blue Sky Survey and any supplements or
amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including legal fees and disbursements) incident to securing any
required review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Shares; the Listing Fee of The Nasdaq
Stock Market; and the expenses, including the fees and disbursements of counsel
for the Underwriters, incurred in connection with the qualification of the
Shares under state securities or Blue Sky laws. The Selling Shareholders have
agreed with the Company to reimburse the Company for a portion of such expenses.
To the extent, if at all, that any of the Selling Shareholders engage special
legal counsel to represent them in connection with this offering, the fees and
expenses of such counsel shall be borne by such Selling Shareholder. Any
transfer taxes imposed on the sale of the Shares to the several Underwriters
will be paid by the Sellers pro rata. The Sellers shall not, however, be
required to pay for any of the Underwriters expenses (other than those related
to qualification under NASD regulation and state securities or Blue Sky laws) if
this Agreement shall not be consummated except that, if this Agreement shall not
be consummated because the conditions in Section 6 (other than Section 6(c))
hereof are not satisfied, or because this Agreement is terminated by the
Representatives pursuant to Section 2(e) or Section 11(a)(i) hereof, or by
reason of any failure, refusal or inability on the part of the Company or the
Selling Shareholders to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on their part to be
performed, unless such failure to satisfy said condition or to comply with said
terms be due to the default or omission of any Underwriter, then the Company
shall reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Shares or in
contemplation of performing their obligations hereunder; but the Company and the
Selling Shareholders shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits from the sale
by them of the Shares.
16
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Firm Shares
on the Closing Date and the Option Shares, if any, on the Option Closing Date
are subject to the accuracy, as of the Closing Date or the Option Closing Date,
as the case may be, of the representations and warranties of the Company and the
Selling Shareholders contained herein, and to the performance by the Company and
the Selling Shareholders of their covenants and obligations hereunder and to the
following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and
any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representatives and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company or the Selling
Shareholders, shall be contemplated by the Commission and no injunction,
restraining order, or order of any nature by a Federal or state court of
competent jurisdiction shall have been issued as of the Closing Date or the
Option Closing Date, as the case may be, which would prevent the issuance of the
Shares.
(b) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinions of Xxxxxx Xxxx
LLP, counsel for the Company, dated the Closing Date or the Option Closing Date,
as the case may be, addressed to the Underwriters (and stating that it may be
relied upon by counsel to the Underwriters) to the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation under the laws of the State of Oregon, with corporate
power and authority to own or lease its properties and conduct its business as
described in the Registration Statement; each of the Subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its business as described
in the Registration Statement; the Company and each of the Subsidiaries are duly
qualified to transact business in the jurisdictions specified in an exhibit
attached to the opinion; to the knowledge of such counsel after due inquiry of
the Company, the Company neither owns nor leases property nor conducts any
material business operations outside of such jurisdictions which would require
qualification in any jurisdiction not specified in such exhibit; and the
outstanding
17
shares of capital stock of each of the Subsidiaries have been duly authorized
and validly issued and are fully paid and non assessable and are owned by the
Company or a Subsidiary or, with respect to O.B. Walls, Inc. owned 50 percent
by the Company; and, to such counsel's knowledge, the outstanding shares of
capital stock of each of the Subsidiaries is owned free and clear of all
liens, encumbrances and claims, except for liens securing the Company's
obligations to its primary lender, and no options, warrants or other rights
to purchase, agreements or other obligations to issue or other rights to
convert any obligations into any shares of capital stock or of ownership
interests in the Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding capital stock
as set forth under the caption "Capitalization" in the Prospectus; the
authorized shares of the Company's Common Stock have been duly authorized by all
necessary corporate action; the outstanding shares of the Company's Common
Stock, including the Shares to be sold by the Selling Shareholders, have been
duly authorized and validly issued and are fully paid and nonassessable; all of
the Shares conform to the description thereof contained in the Prospectus; the
certificates for the Shares, assuming they are in the form filed with the
Commission, comply as to form with Oregon law; the shares of Common Stock,
including the Option Shares, if any, to be sold by the Company pursuant to this
Agreement have been duly authorized and will be validly issued, fully paid and
nonassessable when issued and paid for as contemplated by this Agreement; and
none of them will have been issued in violation of any preemptive or other
similar right granted under the law of Oregon or the Articles of Incorporation
or Bylaws of the Company, or, to the knowledge of such counsel, other rights to
subscribe for or purchase any securities.
(iii) Except as described in or contemplated by the Prospectus
and for stock options granted by the Company to employees and directors in the
ordinary course of business after the date of the Prospectus, to the knowledge
of such counsel, there are no outstanding securities of the Company convertible
or exchangeable into or evidencing the right to purchase or subscribe for any
shares of capital stock of the Company and there are no outstanding or
authorized options, warrants or rights of any character obligating the Company
to issue any shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of such stock; and except as described in the Prospectus, to the
knowledge of such counsel, no holder of any securities of the Company or any
other person has the right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company to sell or otherwise issue
to them, or to permit them to underwrite the sale of, any of the Shares or the
right to have any shares of Common Stock or other securities of the Company
included in the Registration Statement or the right, as a result of the filing
of the Registration Statement, to require
18
registration under the Act of any shares of Common Stock or other securities
of the Company.
(iv) The Registration Statement has become effective under the
Act and, to the best of the knowledge of such counsel, no stop order proceedings
with respect thereto have been instituted or are pending or threatened under the
Act.
(v) The Registration Statement, the Prospectus and each
amendment or supplement thereto comply as to form in all material respects with
the requirements of the Act and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to the financial statements
and related schedules therein). The conditions for the use of Form S-1, set
forth in the General Instructions thereto, have been satisfied.
(vi) The statements under the captions "Risk
Factors-Government Regulations May Limit Our Ability to Expand Our Outdoor
Advertising Business," "Risk Factors-Our Credit Agreements Limit Our Financial
and Operational Flexibility," "Risk Factors-Our Antitakeover Provisions and
Authorized Stock May Reduce the Market Price of Our Common Stock"
"Business-Government Regulation," "Management-Limitation of Liability;
Indemnification of Directors and Officers; Insurance," "Description of Capital
Stock" and "Shares Eligible for Future Sale" in the Prospectus, insofar as such
statements constitute a summary of documents referred to therein or matters of
law, are fair summaries in all material respects and accurately present in all
material respects the information called for with respect to such documents and
matters.
(vii) Such counsel has no knowledge of any contracts or
documents required to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus which are not so filed
or described as required, and such contracts and documents as are summarized in
the Registration Statement or the Prospectus are fairly summarized in all
material respects.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened against the Company or any of the
Subsidiaries which are reasonably likely to have a material and adverse effect
upon the assets or properties, business, results of operations or condition
(financial or otherwise) or prospects of the Company and the Subsidiaries, taken
as whole, except as set forth in the Prospectus.
(ix) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default
19
under, the Articles of Incorporation or Bylaws of the Company, or any
material agreement or instrument as to 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.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein contemplated
(other than as may be required by the NASD or as required by state securities
and Blue Sky laws, as to which such counsel need express no opinion) except such
as have been obtained or made.
(xii) The Company is not, and will not become, as a result of
the consummation of the transactions contemplated by this Agreement and
application of the net proceeds therefrom as described in the Prospectus,
required to register as an investment company under the 1940 Act.
(xiii) This Agreement has been duly executed and delivered on
behalf of the Selling Shareholders.
(xiv) Each Selling Shareholder has full legal right and any
approval required by law (other than as required by state securities and Blue
Sky laws, as to which such counsel need express no opinion), to sell, assign,
transfer and deliver the portion of the Shares to be sold by such Selling
Shareholder.
(xv) Each of the Custody Agreement and the Power of Attorney
executed and delivered by each Selling Shareholder is valid and binding and
enforceable against such Selling Shareholder in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). In addition, no opinion need be expressed with respect to the
enforceability of the provisions in the Custody Agreement and the Power of
Attorney which provide that the authority of the Attorneys (as defined in the
Custody Agreement) and the Custodian appointed pursuant to the Custody Agreement
shall continue notwithstanding the death of an individual Selling Shareholder,
to the extent that the Attorney or Custodian acquires actual knowledge of the
death of such Selling Shareholder.
20
(xvi) Upon payment for and delivery of certificates
representing the Shares being sold pursuant to the Underwriting Agreement by
each Selling Shareholder, duly endorsed by the respective Selling Shareholder,
and assuming the Underwriters are acquiring such Shares in good faith and
without notice of any adverse claim and are otherwise bona fide purchasers
within the meaning of the Uniform Commercial Code, the Underwriters will have
acquired good and marketable title to the Shares being sold by each Selling
Shareholder on the CLOSING Date and the Option Closing Date, as the case may be,
free and clear of all liens, encumbrances and claims.
In rendering such opinions, Xxxxxx Xxxx LLP may rely as to
matters governed by the laws of states other than Oregon or Federal laws on
local counsel in such jurisdictions and as to the matters set forth in
subparagraphs (xiii), (xiv), (xv) and (xvi) on opinions of other counsel
representing the Selling Shareholders, if any, provided that in each case Xxxxxx
Xxxx LLP shall state that they believe that they and the Underwriters are
justified in relying on such other counsel. In addition to the matters set forth
above, Xxxxxx Xxxx LLP shall provide a statement to the Underwriters to the
effect that nothing has come to the attention of such counsel which leads them
to believe that (i) the Registration Statement, at the time it became effective
under the Act (but after giving effect to any modifications incorporated therein
pursuant to Rule 430A under the Act) and as of the Closing Date 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 (ii) the
Prospectus, or any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date 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 necessary in order to make the statements, in the light of
the circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements, schedules and
statistical information therein). With respect to such statement, Xxxxxx Xxxx
LLP may state that their belief is based upon the procedures set forth therein,
but is without independent check and verification.
(c) The Representatives shall have received from Xxxxxxx Coie
LLP, counsel for the Underwriters, an opinion dated the Closing Date or the
Option Closing Date, as the case may be, with respect to the incorporation of
the Company, the validity of the Shares being delivered on such date, the
Registration Statement, the Prospectus and other related matters as you may
reasonably request. In addition to the matters set forth above, Xxxxxxx Coie LLP
shall provide a statement to the Underwriters to the effect that nothing has
come to the attention of such counsel which leads them to believe that (i) the
Registration Statement, or any amendment
21
thereto, as of the time it became effective under the Act (but after giving
effect to any modifications incorporated therein pursuant to Rule 430A under
the Act) as of the Closing Date 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 (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and
as of the Closing Date 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, necessary in order to make the statements, in the light of the
circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements, schedules and
statistical information therein). With respect to such statement, Xxxxxxx
Coie LLP may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(d) If on the Closing Date the Shares do not qualify as
"covered securities" for purposes of Section 18 under the Act, the
Representatives shall have received at or prior to the Closing Date from Xxxxxxx
Coie LLP a memorandum or summary, in form and substance satisfactory to the
Representatives, with respect to the qualification for offering and sale by the
Underwriters of the Shares under the state securities or Blue Sky laws of such
jurisdictions as the Representatives may reasonably have designated to the
Company.
(e) You shall have received, on each of the dates hereof, the
Closing Date and the Option Closing Date, as the case may be, letters dated the
date hereof, the Closing Date or the Option Closing Date, as the case may be, in
form and substance satisfactory to you, of each of Xxxxxx Xxxxxxxx LLP and
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that in their respective opinions the
financial statements and schedules examined by Xxxxxx Xxxxxxxx LLP or
PricewaterhouseCoopers LLP, as the case may be, and included in the Registration
Statement comply in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations; and
containing such other statements and information as is ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the financial
statements and certain financial and statistical information contained in the
Registration Statement and Prospectus and examined by Xxxxxx Xxxxxxxx LLP or
PricewaterhouseCoopers LLP, as the case may be.
(f) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial Officer of
the Company to the effect that, as
22
of the Closing Date or the Option Closing Date, as the case may be, each of
them severally represents as follows:
(i) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registrations
Statement has been issued, and no proceedings for such purpose have been taken
or are, to his knowledge, contemplated by the Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing Date or the
Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to
Rules 424 or 430A under the Act have been made;
(iv) He has carefully examined the Registration Statement and
the Prospectus and, in his opinion, as of the effective date of the Registration
Statement, the statements contained in the Registration Statement were true and
correct in all material respects, and such Registration Statement and Prospectus
did not omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, and since the effective
date of the Registration Statement, no event has occurred which should have been
set forth in a supplement to or an amendment of the Prospectus which has not
been so set forth in such supplement or amendment; and
(v) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business.
(g) The Company and the Selling Shareholders shall have
furnished to the Representatives such further certificates and documents
confirming the representations and warranties, covenants and conditions
contained herein and related matters as the Representatives may reasonably have
requested.
(h) The Firm Shares and Option Shares, if any, have been
approved for listing upon notice of issuance on The Nasdaq National Market.
(i) The Lockup Agreements described in Section 4(a)(x) are in
full force and effect.
23
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Representatives and to Xxxxxxx Coie LLP,
counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
(other than Section 6(c)) shall not have been fulfilled when and as required by
this Agreement to be fulfilled, the obligations of the Underwriters hereunder
may be terminated by the Representatives by notifying the Company and the
Selling Shareholders 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 Selling Shareholders, the Company and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS.
The obligations of the Sellers to sell and deliver the portion of the
Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(i) to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Act,
against any and all losses, claims, damages or liabilities to which such
Underwriter or any such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (A) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (B) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement, or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or such amendment or
24
supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically for use
in the preparation thereof; and, provided further, that the foregoing indemnity
agreement with respect to any untrue statement contained in or any omission from
a Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
any person who controls such Underwriter within the meaning of the Act) from
whom the person asserting any such loss, claim, damage or liability purchased
any of the Firm Shares or Option Shares that are the subject thereof if the
Company shall sustain the burden of proving that the Company made available to
such Underwriter copies of the Prospectus (or the Prospectus as amended or
supplemented) within a reasonable time prior to the written confirmation of the
sale of such shares to such person and that such person was not sent or given a
copy of the Prospectus (or the Prospectus as amended or supplemented) at or
prior to such confirmation of the sale of Firm Shares or Option Shares to the
extent required by the Act and the Rules and Regulations thereunder and the
untrue statement contained in or the omission from such Preliminary Prospectus
was corrected in the Prospectus (or the Prospectus as amended or supplemented).
(ii) to reimburse each Underwriter and each such controlling
person upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage or liability, action or
proceeding or in responding to a subpoena or governmental inquiry related to the
offering of the Shares, whether or not such Underwriter or controlling person is
a party to any action or proceeding. In the event that it is finally judicially
determined that the Underwriters were not entitled to receive payments for legal
and other expenses pursuant to this subparagraph, the Underwriters will promptly
return all sums that had been advanced pursuant hereto.
(iii) This indemnity obligation will be in addition to any
liability which the Company may otherwise have.
(b) The Selling Shareholders, jointly and severally, agree to
indemnify the Underwriters and each person, if any, who controls any Underwriter
within the meaning of the Act, against any and all losses, claims, damages or
liabilities to which such Underwriter or controlling person may become subject
under the Act or otherwise to the same extent as indemnity is provided by the
Company pursuant to Section 8(a) above. In no event, however, shall the
liability of any Selling Shareholder for indemnification under this Section 8(b)
exceed the proceeds received by such Selling Shareholder from the Underwriters
in the offering. This indemnity obligation will be in addition to any liability
which the Selling Shareholders may otherwise have.
25
(c) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, the Selling Shareholders, and each
person, if any, who controls the Company or the Selling Shareholders within the
meaning of the Act, against any and all losses, claims, damages or liabilities
to which the Company or any such director, officer, Selling Shareholder or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, Selling Shareholder or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by or through
the Representatives specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a), (b) or (c) shall be available to
any party who shall fail to give notice as provided in this Section 8(d) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a), (b) or (c). In case any such proceeding shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and
26
shall pay as incurred the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the
indemnified party in the event (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them, or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel
reasonably acceptable to the indemnified party within a reasonable period of
time after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) or (b) and by the Company and the
Selling Shareholders in the case of parties indemnified pursuant to Section
8(c). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent (which consent shall not be
unreasonably withheld) 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 from and against any loss or liability by reason of
such settlement or judgment. In addition, the indemnifying party will not,
without the prior written consent of the indemnified party, which consent
shall not be unreasonably withheld, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or
proceeding of which indemnification may be sought hereunder (whether or not
any indemnified party is an actual or potential party to such claim, action
or proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action or proceeding.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the
27
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the
Selling Shareholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholders bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section
8(e) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 8(e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 8(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter, (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation, and (iii) no Selling Shareholder
shall be required to contribute any amount in excess of the proceeds received by
such Selling Shareholder from the Underwriters in the offering. The
Underwriters' obligations in this Section 8(e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) In any proceeding relating to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each
28
party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it
as an additional defendant in any such proceeding in which such other
contributing party is a party.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any Selling
Shareholder or any person controlling the Company or any Underwriter, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may
be, any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company or a
Selling Shareholder), you, as Representatives of the Underwriters, shall use
your reasonable efforts to procure within 36 hours thereafter one or more of
the other Underwriters, or any others, to purchase from the Company and the
Selling Shareholders such amounts as may be agreed upon and upon the terms
set forth herein, the Firm Shares or Option Shares, as the case may be, which
the defaulting Underwriter or Underwriters failed to purchase. If the
aggregate number of Shares that the defaulting Underwriter or Underwriters
agreed to purchase shall not be purchased in accordance with the preceding
sentence, the Company shall have the right, within 36 hours next succeeding
the 36-hour period referred to above, to make arrangements with other
underwriters or purchasers reasonably satisfactory to you for purchase of
such remaining Shares on the terms herein set forth. If during such two
36-hour periods you, as such Representatives, and the Company shall not have
procured such other Underwriters, or any others, to purchase the Firm Shares
or Option Shares, as the case may be, agreed to be
29
purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of Shares with respect to which such default shall occur
does not exceed 10% of the Firm Shares or Option Shares, as the case may be,
covered hereby, the other Underwriters shall be obligated, severally, in
proportion to the respective numbers of Firm Shares or Option Shares, as the
case may be, which they are obligated to purchase hereunder, to purchase the
Firm Shares or Option Shares, as the case may be, which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate
number of shares of Firm Shares or Option Shares, as the case may be, with
respect to which such default shall occur exceeds 10% of the Firm Shares or
Option Shares, as the case may be, covered hereby, the Company and the
Selling Shareholders or you as the Representatives of the Underwriters will
have the right, by written notice given within the next 36-hour period to the
parties to this Agreement, to terminate this Agreement without liability on
the part of the non-defaulting Underwriters or of the Company or of the
Selling Shareholders, except to the extent provided in Section 8 hereof. In
the event of a default by any Underwriter or Underwriters, as set forth in
this Section 9, the Closing Date or Option Closing Date, as the case may be,
may be postponed for such period, not exceeding seven days, as you, as
Representatives, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section
9 shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriters, to Wedbush
Xxxxxx Securities Inc., 0000 Xxxxxxxx Xxxx., XX Xxx 00000, Xxx Xxxxxxx, XX
00000-0000, Attention: Xxxxxxx X. Xxxxxxx; with a copy to Xxxxxxx Coie LLP,
0000 XX Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000, Attention: Xxx X.
Xxxxxx, Esq.; and if to the Company or the Selling Shareholders, to Xxxx
Media Corporation, 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxx 00000, Attention: Xxxxx
X. Xxxx; with copies to Xxxxxx Xxxx LLP, 000 XX Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Esq. and to counsel to the
Selling Shareholders; if any.
11. TERMINATION.
This Agreement may be terminated:
30
(a) by you by notice to the Sellers at any time prior to
the Closing Date if any of the following has occurred: (i) since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or any development
involving a prospective material adverse change in or affecting the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries,
taken as a whole, whether or not arising in the ordinary course of business,
(ii) any outbreak or escalation of hostilities or declaration of war or
national emergency 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 it impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares, (iii) suspension of trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange or limitation on prices (other than limitations on hours or numbers
of days of trading) for securities on either such Exchange, (iv) the
enactment, publication, decree or other promulgation of any statute,
regulation, rule or order of any court or other governmental authority which
in your reasonable opinion materially and adversely affects or is likely to
materially and adversely affect the business or operations of the Company,
(v) declaration of a banking moratorium by United States or New York State
authorities, (vi) the suspension of trading of the Company's common stock by
The Nasdaq Stock Market, the Commission, or any other governmental authority,
or (vii) the taking of any action, after the date of this Agreement, by any
governmental body or agency in respect of its monetary or fiscal affairs
which in your reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(b) as provided in Sections 2(e), 6 and 9 of this
Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company and the Selling Shareholders and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person
will have any right or obligation hereunder. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign merely
because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company, the Selling Shareholders and the Underwriters acknowledge
and agree that the only information furnished or to be furnished by any
Underwriter to the
31
Company for inclusion in any Prospectus or the Registration Statement
consists of the information set forth in the last sentence of the last
paragraph on the front cover page (insofar as such information relates to the
Underwriters), legends required by Item 502(d) of Regulation S-K under the
Act and the information under the caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants
in this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of
any Underwriter or controlling person thereof, or by or on behalf of the
Company or its directors or officers, and (c) delivery of and payment for the
Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
32
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Selling Shareholders,
the Company and the several Underwriters in accordance with its terms.
Any person executing and delivering this Agreement as Attorney for a
Selling Shareholder represents by so doing that he or she has been duly
appointed as Attorney by such Selling Shareholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney to take such
action.
Very truly yours,
XXXX MEDIA CORPORATION
By
----------------------------------
Title:
Selling Shareholders listed on Schedule II
By
-----------------------------------
Attorney
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
WEDBUSH XXXXXX SECURITIES INC.
PACIFIC CREST SECURITIES INC.
As Representatives of the several
Underwriters listed on Schedule I
By: WEDBUSH XXXXXX SECURITIES INC.
By:
------------------------------
Authorized Officer
33
SCHEDULE I
SCHEDULE OF UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
----------- ----------------------
Wedbush Xxxxxx Securities Inc.
Pacific Crest Securities Inc.
Total 1,750,000
1
SCHEDULE II
SCHEDULE OF SELLING SHAREHOLDERS
NUMBER OF FIRM SHARES
SELLING SHAREHOLDER TO BE SOLD
------------------- ----------------------
Xxxxx X. Xxxx 300,000
Xxxxxxx X. Xxxx 150,000
Xxxxxx Xxxx 50,000
Xxxxxxx X. Xxxx 100,000
Xxxxxxxxx Xxxx-Xxxxxxx 100,000
-------
Xxxxx X. Xxxxx 50,000
-------
Total 750,000
-------
-------
1
SCHEDULE III
SCHEDULE OF OPTION SHARES
MAXIMUM NUMBER PERCENTAGE OF
OF OPTION SHARES TOTAL NUMBER OF
NAME OF SELLER TO BE SOLD OPTION SHARES
-------------- ---------------- ---------------
Xxxx Media Corporation 162,500 61.9%
Xxxxx X. Xxxx 100,000 38.1%
------- -----
Total 262,500 100%
------- ----
1
SCHEDULE IV
PARTIES TO LOCK-UP AGREEMENTS
Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxx
Xxxxx Xxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxx X. Xxxxxxx Trust Agreement Dated 12/20/96
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxxx X. Xxxxxxx Trust Agreement Dated 12/20/96
Xxxxxxx X. Xxxx, Trustee FBO Xxxxx X. Xxxxxxx Trust Agreement Dated 12/20/96
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxx X. Xxxxxxx Trust Agreement Dated 12/20/96
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxx X. Xxxxxxx Trust Agreement Dated 12/20/96
Xxxxxxx X. Xxxx, Trustee FBO Xxxxx X. Xxxxxxx Trust Agreement Dated 12/20/96
Xxxxxxx X. Xxxx, Trustee FBO Xxxxx X. Xxxxxxx Trust Agreement Dated 12/20/96
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxxx Xxxxx Xxxxxxx Trust Agreement Dated
12/20/96
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxx X. Xxxxxxx UA Dated December 20, 1996
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxxx X. Xxxxxxx UA Dated December 20, 1996
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxx Xxxxxx Xxxx Xxxxxxx
Xxxxxxx X. Xxxx, Trustee FBO Xxxxx X. Xxxxxxx UA Dated December 20, 1996
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxx X. Xxxxxxx UA Dated December 20, 1996
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxx X. Xxxxxxx UA Dated December 20, 1996
Xxxxxxx X. Xxxx, Trustee FBO Xxxxx X. Xxxxxxx UA Dated December 20, 1996
Xxxxxxx X. Xxxx, Trustee FBO Xxxxx X. Xxxxxxx UA Dated December 20, 1996
Xxxxxxx X. Xxxx, Trustee FBO Xxxxxxx Xxxxx Xxxxxxx UA Dated December 20, 1996
Xxxxxxx X. Xxxxxxx
1
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxxxx Xxxx Xxxxxxx, Trustee FBO Xxx Xxxxxx Xxxx Trust Agreement Dated
12/20/96
Xxxxxxxxx Xxxx Xxxxxxx, Trustee FBO Xxx Xxxxxx Xxxx UA Dated December 20, 1996
Xxxxxxxxx Xxxx Xxxxxxx, Trustee FBO Xxxxxx Xxxxx Xxxx
2
EXHIBIT A
SUBSIDIARIES
JURISDICTION PERCENTAGE OF
OF OWNERSHIP BY
NAME INCORPORATION XXXX MEDIA CORPORATION
---- ------------- ----------------------
O. B. Walls, Inc. Oregon 50%
Xxxxxxx & Xxxxx, Inc. New York 100%
Xxxx Media Limited British Columbia, Canada 100%
1
