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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
THE ACKERLEY GROUP
(Exact name of registrant as specified on its charter)
Delaware 91-1043870
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1301 Fifth Avenue, Suite 4000
Seattle, Washington 98101
(Address of principal executive offices)
EMPLOYEE STOCK PURCHASE PLAN;
FOURTH AMENDED AND RESTATED EMPLOYEES STOCK OPTION PLAN
(Full title of the plan)
Please send copies of all communications to:
DENIS M. CURLEY
CO-PRESIDENT, CHIEF FINANCIAL OFFICER,
TREASURER & SECRETARY
1301 FIFTH AVENUE, SUITE 4000
SEATTLE, WASHINGTON 98101
(206) 624-2888
(Name, address including zip code, telephone number
including area code, of agent for service)
Copies to:
CARMEN L. SMITH, ESQ.
GRAHAM & DUNN PC
33RD FLOOR
1420 FIFTH AVENUE
SEATTLE, WASHINGTON 98101
(206) 624-8300
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<TABLE>
<CAPTION>
Calculation of Registration Fee
=================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Class Offering Aggregate Amount of
of Securities Amount to be Price Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.01 PAR VALUE 2,000,000 shares(2) $18 1/8 $36,250,000 $9,570
=================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee and based, pursuant to Rule 457(c) under the Securities Act of
1933, on the average of the high and low prices reported by the New York Stock
Exchange for the common stock on December 20, 1999, par value $.01 ("Common
Stock"), of The Ackerley Group, Inc. (the "Company").
(2) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to the
Plans as a result of any future stock split, stock dividend or similar
adjustment of the outstanding Common Stock of the Company.
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<PAGE> 3
Of the 2,000,000 shares of Common Stock being registered under this
Registration Statement, 1,500,000 shares relate to shares authorized for
issuance under the Company's Employee Stock Purchase Plan and 500,000 shares
relate to additional shares authorized for issuance under the Company's Fourth
Amended and Restated Employees Stock Option Plan. The contents of the Company's
earlier Registration Statements on Form S-8 (file Nos. 33-22545 and 33-88020),
registering the previous shares of Common Stock authorized under the Plan, are
incorporated into this Registration Statement by reference. The number of shares
authorized under the Plan and registered under the earlier Registration
Statements were automatically increased to an aggregate 1,000,000 shares of
Common Stock as a result of a 2-for-1 stock split declared by the Company and
effective October 15, 1996.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 Employee Stock Purchase Plan effective January 1, 2000
4.2 Fourth Amended and Restated Employees Stock Option Plan
dated as of May 11, 1999 (1)
5 Opinion of Graham & Dunn as to legality of securities
23.1 Consent of Graham & Dunn as to legality of securities
(included in Graham & Dunn opinion as part of Exhibit
5)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney of Barry A. Ackerley
24.2 Power of Attorney of Gail A. Ackerley
24.3 Power of Attorney of Deborah L. Bevier
24.4 Power of Attorney of Michel C. Thielen
24.5 Unanimous Contest Resolutions of Board of Directors
authorizing Power of Attorney of officers
</TABLE>
(1) Incorporated by reference to Exhibit 10 to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on the 21st day of
December, 1999.
THE ACKERLEY GROUP, INC.
BY: /S/ DENIS M. CURLEY
------------------------------------
Denis M. Curley
Co-President, Chief Financial Officer,
Treasurer and Secretary
1
<PAGE> 4
Pursuant to the requirements of the Securities Act, this Power of
Attorney has been signed by the following persons in the capacities indicated,
on the 21st day of December, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* BARRY A. ACKERLEY Chairman and Chief Executive Officer (Director,
- ----------------------------------- Principal Executive Officer)
Barry A. Ackerley
/s/ DENIS M. CURLEY Co-President and Chief Financial Officer, Treasurer and
- ----------------------------------- Secretary
Denis M. Curley (Principal Financial Officer)
/s/ KEITH W. RITZMANN Senior Vice President, Chief Information Officer,
- ----------------------------------- Assistant Secretary and Controller (Principal
Keith W. Ritzmann Accounting Officer)
* GAIL A. ACKERLEY Director
- -----------------------------------
Gail A. Ackerley
* DEBORAH L. BEVIER Director
- -----------------------------------
Deborah L. Bevier
* MICHEL C. THIELEN Director
- -----------------------------------
Michel C. Thielen
By: /s/ DENIS M. CURLEY
-------------------------------
*
(Attorney-in-fact)
</TABLE>
2
<PAGE> 1
EXHIBIT 4.1
THE ACKERLEY GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll withholding amounts. It is the
intention of the Company that the plan qualify as an "Employee Stock Purchase
Plan" within the meaning of Code Section 423, and the provisions of the Plan
shall be construed in a manner consistent with the requirements of Code Section
423.
2. DEFINITIONS.
(a) "Base Pay" shall mean the Participant's federal income tax
withholding compensation from the Company or any of its subsidiaries
during the calendar year for services rendered (such as wages, salary,
overtime, commissions, and other remuneration that is reportable to the
federal government for the purpose of withholding federal income taxes
and is reflected on a Participant's W-2 income tax statement),
excluding payments of any annual budget incentive plan bonuses and
non-cash payments.
(b) "Board" shall mean the Company's Board of Directors.
(c) "Change in Control" shall have the meaning set forth in
paragraph 16.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) "Commencement Date" shall mean the first day of each
Offering Period on which the New York Stock Exchange is open for
trading.
(f) "Common Stock" shall mean the Company's publicly traded
common stock, $.01 par value.
(g) "Company" shall mean The Ackerley Group, Inc., a Delaware
corporation.
(h) "Committee" shall have the meaning set forth in paragraph
11(a).
(i) "Continuous Status as an Employee" shall mean the absence
of any interruption or termination of service as an Employee.
Continuous Status as an Employee shall not be considered interrupted in
the case of absence due to vacation, sick leave or FMLA leave, military
leave or other approved leave of absence in accordance with the
Company's policies or leave agreed to in writing by the Company,
provided that such leave is for a period of not more than 90 days or
reemployment upon the expiration of such leave is guaranteed by
contract or statute.
(j) "Custodian" shall mean the person entity designated by the
Committee or Plan Administrator pursuant to paragraph 11(b).
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 1
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(k) "Designated Subsidiary" shall mean each subsidiary that
has been designated by the Board or the Committee as eligible to become
a participating employer in the Plan.
(l) "Effective Date" shall mean January 1, 2000.
(m) "Employee" shall mean any person who is actually recorded
as an employee on the Company's or Designated Subsidiary's customary
and usual payroll records at the time the services are performed,
provided that no person classified as an independent contractor by the
Company or a Designated Subsidiary shall be considered an "Employee"
for purposes of the Plan.
(n) "Exercise Date" shall mean the last day of each Offering
Period on which the New York Stock Exchange is open for trading.
(o) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(p) "Fair Market Value" shall mean, on any date, the closing
price per share of the Common Stock on the New York Stock Exchange on
such date.
(q) "Offering Period" shall mean each biannual offering period
beginning on January 1st and July 1st, and ending on June 30th and
December 31st, respectively, of each year during the continuation of
the Plan; provided that the Committee shall have the power to change
the duration of Offering Periods from time to time in its sole
discretion.
(r) "Option Price" shall have the meaning set forth in
paragraph 4(c).
(s) "Participant" shall mean each Employee who is eligible to
participate in the Plan and who has elected to participate in the Plan
by timely filing a payroll withholding authorization form with the
Committee.
(t) "Plan" shall mean The Ackerley Group, Inc. Employee Stock
Purchase Plan, as amended from time to time.
(u) "Plan Administrator" shall mean the person designated by
the Committee pursuant to paragraph 11(b).
(v) "Reserves" shall have the meaning set forth in paragraph
15(b).
(w) "Subsidiary" shall mean a corporation, domestic or
foreign, of which not less than 50% of the voting shares are held by
the Company or a Subsidiary whether or not such corporation now exists
or is hereafter organized or acquired by the Company or a Subsidiary.
(x) "Transaction" shall have the meaning set forth in
paragraph 16(b)(iii).
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 2
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3. EMPLOYEE ELIGIBILITY.
(a) Subject to the requirements of paragraph 4(b), any
Employee shall be eligible to participate in the Plan during an
Offering Period, provided that as of the Commencement Date of such
Offering Period:
(i) the Employee's customary employment with the Company
or a Designated Subsidiary is more than 20 hours per week and
more than five months in any calendar year; and
(ii) the Employee has maintained Continuous Status as an
Employee for at least three months; and
provided that the Employee maintains Continuous Status as an Employee
throughout the Offering Period. For purposes of paragraph 3(a)(ii),
service with a "predecessor employer" shall be considered service with
the Company or a Designated Subsidiary. The term "predecessor employer"
means an entity (i) the securities or assets of which are acquired by
the Company or a Designated Subsidiary or which is merged into the
Company or a Designated Subsidiary and (ii) which is so designated by
the Committee.
(b) Notwithstanding any provision of the Plan to the contrary,
no Employee shall be granted an option under the Plan:
(i) if, immediately after the grant, the Employee
(together with any other person whose stock would be
attributed to the Employee pursuant to Code Section 424(d)
would own stock and/or hold outstanding options to purchase
stock possessing five percent or more of the total combined
voting power or value of all classes of stock of the Company
or any Subsidiary; or
(ii) which permits the Employee's right to purchase
stock under all employee stock purchase plans (described in
Code Section 423) of the Company and any subsidiary to accrue
at a rate that exceeds $25,000 of Fair Market Value of such
stock (determined on the date the option is granted) for each
calendar year in which the option is outstanding at any time.
4. GRANT OF OPTION; PARTICIPATION.
(a) On each Commencement Date, the Company shall commence an
offer by granting each eligible Employee an option to purchase the
maximum number of shares of Common Stock that may be purchased by the
eligible Employee pursuant to the Plan, subject to the limitations set
forth in paragraph 10.
(b) Each eligible Employee may elect to participate in the
Plan with respect to an offer only by filing a payroll withholding
authorization form with the Committee on or before the 15th day of the
month preceding the Commencement Date of the Offering Period (or such
other date as the Committee may designate from time to time in its sole
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 3
<PAGE> 4
discretion) authorizing payroll withholding (as set forth in paragraph
5) throughout the Offering Period.
(c) The option price per share of the Common Stock subject to
an offering (the "Option Price") shall be the lesser of:
(i) 90% of the Fair Market Value of a share of Common
Stock on the Commencement Date, or
(ii) 90% of the Fair Market Value of a share of Common
Stock on the Exercise Date.
5. PAYROLL WITHHOLDING; PLAN ACCOUNT.
(a) The payroll withholding authorization form filed by an
eligible Employee with the Committee shall indicate the percentage
amount (in whole numbers) of the Participant's Base Pay (not to exceed
10%) that the Participant elects to use to purchase shares of Common
Stock pursuant to the Plan. A Participant may change Participant's
percentage amount by filing a new payroll withholding authorization
form with the Committee on or before the 15th day of the month
preceding the Commencement Date of the next Offering Period (or such
other date as the Committee may designate from time to time in its sole
discretion). The change in amount shall be effective on the
Commencement Date of the next Offering Period and will not be effective
for the Offering Period in progress at the time the Participant makes
the change. A Participant's payroll withholding authorization form
shall remain in effect for successive Offering Periods unless modified
as provided in this paragraph or terminated as provided in paragraph 8.
(b) During an Offering Period, the Company shall withhold from
each Participant's Base Pay the percentage amount elected by the
Participant pursuant to paragraph 5(a). All payroll withholding from a
Participant's Base Pay shall be credited to the Participant's Plan
account. A Participant may not make any payments for the purchase of
Common Stock pursuant to the Plan other than payments pursuant to a
payroll withholding authorization form.
(c) The Participant's Plan account shall be in the name of the
Participant or, if the Participant so directs in the initial payroll
withholding authorization form or by written notice to the Committee
prior to the Execution Date, in the names of the Participant and such
other person as may be designated by the Participant as joint tenants
with rights of survivorship, tenants in common or as community
property, to the extent and in the manner permitted by applicable law.
6. EXERCISE OF OPTION. Unless a Participant withdraws, the
Participant's accumulated payroll withholding amounts in accordance with
paragraph 8, the Participant's option to purchase Common Stock shall be
exercised automatically on the Exercise Date, and the maximum number of whole
shares of Common Stock subject to the option granted to each Participant shall
be purchased at the Option Price with the Participant's accumulated payroll
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 4
<PAGE> 5
withholding amounts. No fractional shares of Common Stock may be purchased.
Payroll withholding amounts that represent cash in lieu of fractional shares
shall remain in the Participant's Plan account and shall become part of the
Participant's accumulated payroll withholding amounts for the next Offering
Period. The Common Stock purchased upon exercise of an option shall be deemed to
be transferred to the Participant on the Exercise Date. During each
Participant's lifetime, the option to purchase shares of Common Stock shall be
exercisable only by the Participant.
7. REGISTRATION AND DELIVERY OF STOCK. Certificates representing shares
of Common Stock to be delivered to a Participant pursuant to the Plan shall be
registered in the name of the Participant, held by the Custodian and credited to
the Participant's Plan account. Upon written request by a Participant or a
Participant's legal representative to the Custodian, the Custodian shall arrange
for issuance and delivery of such certificates to the Participant's Plan
account. The Custodian may require a Participant or a Participant's legal
representative to provide such documentation as may be reasonably required in
connection with the issuance and transfer of certificates of Common Stock.
8. WITHDRAWAL FROM PLAN; TERMINATION OF EMPLOYMENT.
(a) During an Offering Period, a Participant may withdraw all,
but not less than all, of the Participant's payroll withholding amounts
prior to the Exercise Date of an Offering Period by giving written
notice to the Committee. All of the Participant's payroll withholding
amounts shall be paid to the Participant as soon as administratively
feasible after receipt of written notice of withdrawal, and the
Participant's option for the Offering Period shall be automatically
terminated.
(b) Any Participant who withdraws from the Plan during an
Offering Period pursuant to paragraph 8(a) shall not be eligible to
participate in the Plan for the remainder of the Offering Period. To
participate in the Plan for a subsequent Offering Period, the
Participant must file a new payroll withholding authorization form with
the Committee on or before the date prescribed pursuant to paragraph
4(b).
(c) Upon termination of a Participant's Continuous Status as
an Employee prior to the Exercise Date of an Offering Period on account
of retirement or disability (in accordance with the Company's personnel
policies) or death, the Participant's payroll withholding amounts shall
be used to purchase Common Stock on the next succeeding Exercise Date
unless the Participant (or in the case of the Participant's death, the
legal representative of the Participant's estate) elects to withdraw
the Participant's payroll withholding amounts in cash prior to the
Exercise Date. Upon termination of a Participant's Continuous Status as
an Employee for any other reason, the Participant's payroll withholding
amounts shall be refunded to the Participant in cash as soon as
administratively feasible after such termination.
9. INTEREST. No interest shall accrue on or be payable to a
Participant's payroll withholding amounts.
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 5
<PAGE> 6
10. AUTHORIZED STOCK; STOCKHOLDER RIGHTS.
(a) The maximum number of shares of Common Stock that shall be
reserved for issuance pursuant to the Plan shall be 1,500,000, subject
to adjustment due to changes in capitalization of the Company as
provided in paragraph 15. If the total number of shares of Common Stock
that would otherwise be subject to options granted pursuant to
paragraph 4(a) on a Commencement Date exceeds the number of shares of
Common Stock then available under the Plan (after deduction of all
shares of Common Stock for which options have been exercised or are
then outstanding), the Committee shall make a pro rata allocation of
the shares of Common Stock remaining available for option grant in a
uniform manner. In such event, the Committee shall give notice to each
Participant of the reduction in the number of shares of Common Stock
available for option grant and, if necessary, shall reduce the rate of
payroll withholding of all affected Participants. The Plan shall
terminate if no Common Stock is available for issuance pursuant to the
Plan. The Common Stock available for issuance pursuant to the Plan may
be authorized but unissued shares, treasury shares or shares purchased
by the Company in the public market for issuance pursuant to the Plan.
The Company shall pay all brokerage commissions and fees incurred in
connection with the purchase of Common Stock for issuance pursuant to
the Plan.
(b) No Participant shall have rights as a stockholder with
respect to Common Stock subject to an option until such shares of
Common Stock have been purchased for the Participant's Plan account in
accordance with the provisions of the Plan.
11. ADMINISTRATION OF PLAN.
(a) The Plan shall be administered by a committee comprised of
one or more individuals (the "Committee") appointed from time to time
by the Board. The Committee shall have full power and authority to
promulgate rules and regulations for the proper administration of the
Plan, to interpret the provisions and supervise the administration of
the Plan and to take all actions in connection with or in relation to
the Plan as it deems necessary or desirable. Decisions of the Committee
shall be made by a majority of its members and shall be final for all
purposes. The Company shall pay all expenses incurred in connection
with the administration of the Plan.
(b) The Committee may delegate all or part of its power and
authority to administer the Plan to a Plan Administrator appointed by
the Committee. The Plan Administrator (or the Committee if no Plan
Administrator has been appointed) may delegate the responsibility for
the day-to-day operations of the Plan to a Custodian. The Custodian
shall establish and maintain an account for each Participant for the
purpose of holding Common Stock on behalf of each Participant.
12. RESTRICTIONS ON TRANSFERABILITY. Neither payroll withholding
amounts nor any rights with regard to the exercise of an option or to receive
Common Stock pursuant to the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will or the laws of descent and
distribution) by the Participant. Any such attempted assignment,
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 6
<PAGE> 7
transfer, pledge or other disposition shall be ineffective except that the
Committee may treat such act as an election to withdraw payroll withholding
amounts in accordance with paragraph 8.
13. USE OF FUNDS. All payroll withholding amounts pursuant to the Plan
may be used by the Company for any corporate purpose, and the Company shall not
be obligated to segregate payroll withholding amounts from its other assets.
14. REPORTS. Statements of account shall be give to each Participant as
soon as administratively feasible after each Exercise Date. The statements shall
set forth the Participant's payroll withholding amounts throughout the Offering
Period, the Option Price, the number of shares of Common Stock purchased and the
cash balance, if any, in the Participant's Plan Account.
15. ADJUSTMENTS. Subject to any required action by the stockholders of
the Company,
(a) the number of shares of Common Stock subject to each
option granted pursuant to the Plan that has not been exercised,
(b) the number of shares of Common Stock that has been
authorized for issuance pursuant to the Plan but has not been placed
under option (collectively, the "Reserves"), and
(c) the Option Price of Common Stock subject to each option
granted pursuant to the Plan that has not been exercised,
shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of
the Common Stock or similar capital adjustment, or any other increase
or decrease in the number of shares of Common Stock effected without
receipt of consideration by the Company, provided that conversion of
any convertible securities of the Company shall not be deemed to have
been "effected without receipt of consideration." Such adjustment shall
be made by the Board whose determination shall be final, binding and
conclusive for all purposes. Except as expressly provided in the plan,
no issue by the Company of shares of stock of any class or securities
convertible into shares of stock of any class shall affect, and no
adjustment by reason thereof shall be made with respect to, the number
or Option Price of the shares of Common Stock subject to an option
granted pursuant to the Plan.
16. EFFECTS OF CERTAIN CHANGES. In the event of the dissolution or
liquidation of the Company, the Offering Period shall terminate immediately
prior to the consummation of such event unless otherwise provided by the Board.
In the event that the Company enters into an agreement to merge into,
consolidate with or otherwise transfer all or substantially all of its assets to
another corporation or a Change in Control or threatened Change in Control (as
determined by the Committee in its sole discretion) occurs, each option under
the Plan shall be assumed, or an equivalent option shall be substituted by, the
surviving, resulting or acquiring
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 7
<PAGE> 8
corporation or a parent or subsidiary of such corporation unless the Board
determines, in its sole discretion and in lieu of such assumption or
substitution:
(a) to cancel each option and refund to each Participant the
payroll withholding amounts received with respect to the canceled
options, or
(b) to give each Participant the right to exercise the option
as to all of the optioned shares of Common Stock, including shares of
Common Stock as to which the option would not other be exercisable.
For purposes of this paragraph 16, "Change in Control" means one or
more of the following events.
(i) Any person within the meaning of Section 13(d) and
14(d) of the Exchange Act, other than the Company (including
its Subsidiaries, directors or executive officer) has become
the beneficial owner, within the meaning of Rule 13d-3 under
the Exchange Act, of 50% or more of the combined voting power
of the Company's then outstanding Common Stock or equivalent
in voting power of any class or classes of the Company's
outstanding securities ordinarily entitled to vote in
elections of directors ("voting securities"); or
(ii) Shares representing 50% or more of the combined
voting power of the Company's voting securities are purchased
pursuant to a tender offer or exchange offer (other than an
offer by the Company or its Subsidiaries or affiliates); or
(iii) As a result of, or in connection with, any tender
offer or exchange offer, merger, or other business
combination, sale of assets or contested election, or any
combination of the foregoing transactions (a "Transaction"),
the persons who were Directors of the Company before the
Transaction shall cease to constitute a majority of the Board
of the Company or of any successor to the Company; or
(iv) Following the effective date of the Plan, the
Company is merged or consolidated with another corporation and
as a result of such merger or consolidation less than 50% of
the outstanding voting securities of the surviving or
resulting corporation shall then be owned in the aggregate by
the former shareholders of the Company, other than (A) any
party to such merger or consolidation, or (B) any affiliates
of any such party; or
(v) The Company transfers more than 50% of its assets,
or the last of a series of transfers results in the transfer
of more than 50% of the assets of the Company, to another
entity that is not wholly-owned by the Company. For purposes
of this subparagraph (v), the determination of what
constitutes 50% of the assets of the Company shall be made by
the Committee, as constituted immediately prior to the events
that would constitute a change in control if 50%
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 8
<PAGE> 9
of the Company's assets were transferred in connection with
such events, in its sole discretion.
If the Board makes an option fully exercisable upon the happening of
one of the events described in this paragraph 16, the Board shall notify each
Participant that the option shall be fully exercisable for a period of at least
30 days from the date of such notice, and the option shall terminate upon the
expiration of such period.
The Board, in its sole discretion, also may adjust the Reserves as well
as the Option Price of the Common Stock subject to each outstanding option if
the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of shares of Common Stock or
consolidates with or merges into any other corporation.
17. AMENDMENT OR TERMINATION. The Board may at any time terminate,
suspend or amend the entire Plan or any provision of the Plan. Except as
provided in paragraph 16, no such termination shall affect options previously
granted, nor may an amendment make any change in any option previously granted
that adversely affects the rights of any Participant, nor may an amendment be
made without prior approval of the Company's stockholders if such amendment
would:
(a) materially increase the number of shares of Common Stock
that may be issued pursuant to the Plan; or
(b) change the designation or class of employees eligible for
participation in the Plan;
provided that prior approval of the Company's stockholders with respect to the
foregoing shall be required only to the extent required by an statutory law,
regulation or stock exchange rule.
18. NOTICES. All notices or other communications by a Participant to
the Committee under or in connection with the Plan shall be deemed to have been
given when received in the form specified by the Committee to the location, or
by the person, designated by the Committee for the receipt thereof.
19. STOCKHOLDER APPROVAL. The Plan shall be subject to approval of the
Company's stockholders within 12 months before or after the Effective Date of
the Plan.
20. EMPLOYMENT RIGHTS. Participation in the Plan shall not impose any
obligations upon the Company to continue the employment of a Participant for any
specific period of time and shall not affect the right of the Company to
terminate such person's employment at any time, with or without cause.
21. GOVERNING LAW. The validity, construction and effect of the Plan
and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Washington (without giving effect to
conflicts of laws principles) and applicable Federal law.
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 9
<PAGE> 10
22. CONDITIONS UPON ISSUANCE OF COMMON STOCK. Common Stock shall not be
issued with respect to an option unless the exercise of the option and the
issuance and delivery of the Common Stock complies with all applicable
provisions of law, domestic or foreign, including without limitation the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated under such laws, the requirements of any stock exchange upon which
the Common Stock may then be listed, and shall be subject to the approval of
counsel to the Company with respect to such legal compliance.
As a condition to the exercise of an option, the Company may require
the person exercising the option to represent and warrant at the time of such
exercise that the Common Stock is being purchased only for investment without
any present intention to sell or distribute the Common Stock if, in the opinion
of counsel to the Company, such a representation is required by applicable law.
23. EFFECTIVE DATE. The Plan shall be effective on the Effective Date
subject to the approval of the Plan by the Company's stockholders.
Adopted by the Board of Directors of The Ackerley Group, Inc. on November 10,
1999.
The Ackerley Group Employee Stock Purchase Plan
Plan Description - page 10
<PAGE> 1
EXHIBIT 5
December 21, 1999
The Ackerley Group, Inc.
1301 Fifth Avenue, Suite 4000
Seattle, WA 98101
RE: EMPLOYEE STOCK PURCHASE PLAN AND FOURTH AMENDED AND RESTATED
EMPLOYEES STOCK OPTION PLAN; LEGAL OPINION CONCERNING THE
VALIDITY OF SECURITIES OFFERED
Ladies and Gentlemen:
We are acting as counsel in connection with the registration under the
Securities Act of 1933, as amended ("Act"), of 2,000,000 shares of common stock,
$.01 par value ("Shares"), of The Ackerley Group, Inc., a Delaware corporation
(the "Company"). A registration statement on Form S-8 ("Registration Statement")
is being filed under the Act with respect to the offering of the Shares.
In connection with the offering of the Shares, we have examined: (i)
the Employee Stock Purchase Plan effective January 1, 2000, which is filed as
Exhibit 4.1 to the Registration Statement ("ESPP"); (ii) the Fourth Amended and
Restated Employees Stock Option Plan ("Plan"), which is filed as Exhibit 4.2 to
the Registration Statement; (iii) the Registration Statement, including the
remainder of the exhibits; and (iv) such other documents as we have deemed
necessary to form the opinions hereinafter expressed. As to various questions of
fact material to such opinions, where relevant facts were not independently
established, we have relied upon statements of officers of the Company.
Our opinion assumes that: (a) the Shares to be issued will be validly
authorized on the date of issuance; (b) the pertinent provisions of such "blue
sky" and securities laws as may be applicable have been complied with; and (c)
the Shares are issued in accordance with the terms of the ESPP and the Plan.
Based and relying solely upon the foregoing, we advise you that, in our
opinion, the Shares, or any portion thereof, to the extent such Shares represent
original issuances by the Company, when issued pursuant to the ESPP and the Plan
after the Registration Statement has become effective under the Act will be
validly issued, fully paid, and nonassessable.
Consent is hereby given to the filing of this opinion as an Exhibit to
the Registration Statement. In giving this consent, we do not thereby admit that
we come within the category of
<PAGE> 2
The Ackerley Group, Inc.
December 21, 1999
Page 2
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
GRAHAM & DUNN PC
/s/ Graham & Dunn PC
<PAGE> 1
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Employee Stock Purchase Plan; Fourth Amended and
Restated Employees Stock Option Plan, of our report dated March 16, 1999, with
respect to the consolidated financial statements of The Ackerley Group, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Seattle, Washington
December 22, 1999
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned Director and Officer of The Ackerley Group, Inc.
("Company") appoints each of Denis M. Curley and Keith W. Ritzmann his true and
lawful attorney and agent, in name and on behalf of the undersigned, in any and
all registration statements (including without limitation, any registration
statement filed pursuant to Rule 462(b) promulgated under the Securities Act of
1933) and any and all amendments and post-effective amendments and exhibits
thereto in connection with the offering by the Company of shares of its common
stock under the Company's Employee Stock Purchase Plan and the Company's
Employees Stock Option Plan, and to do any and all acts and things and execute
any and all instruments which the attorney and agent may deem necessary or
advisable in connection therewith, without the other and with full power of
substitution and revocation, and hereby ratifying all that any such attorney or
his substitute may do by virtue hereby.
Pursuant to the requirements of the Securities and Exchange Act of
1933, this Power of Attorney has been signed by the following person in the
capacity indicated on this 19th day of November, 1999.
/s/ Barry A. Ackerley
-----------------------------------------
Barry A. Ackerley, Chairman of the Board,
Chief Executive Officer and Director
<PAGE> 1
EXHIBIT 24.2
POWER OF ATTORNEY
The undersigned Director of The Ackerley Group, Inc. ("Company")
appoints each of Barry A. Ackerley, Denis M. Curley and Keith W. Ritzmann her
true and lawful attorney and agent, in name and on behalf of the undersigned, in
any and all registration statements (including without limitation, any
registration statement filed pursuant to Rule 462(b) promulgated under the
Securities Act of 1933) and any and all amendments and post-effective amendments
and exhibits thereto in connection with the offering by the Company of shares of
its common stock under the Company's Employee Stock Purchase Plan and the
Company's Employees Stock Option Plan, and to do any and all acts and things and
execute any and all instruments which the attorney and agent may deem necessary
or advisable in connection therewith, without the other and with full power of
substitution and revocation, and hereby ratifying all that any such attorney or
his substitute may do by virtue hereby.
Pursuant to the requirements of the Securities and Exchange Act of
1933, this Power of Attorney has been signed by the following person in the
capacity indicated on this 19th day of November, 1999.
/s/ Gail A. Ackerley
-----------------------------------------
Gail A. Ackerley
<PAGE> 1
EXHIBIT 24.3
POWER OF ATTORNEY
The undersigned Director of The Ackerley Group, Inc. ("Company")
appoints each of Barry A. Ackerley, Denis M. Curley and Keith W. Ritzmann her
true and lawful attorney and agent, in name and on behalf of the undersigned, in
any and all registration statements (including without limitation, any
registration statement filed pursuant to Rule 462(b) promulgated under the
Securities Act of 1933) and any and all amendments and post-effective amendments
and exhibits thereto in connection with the offering by the Company of shares of
its common stock under the Company's Employee Stock Purchase Plan and the
Company's Employees Stock Option Plan, and to do any and all acts and things and
execute any and all instruments which the attorney and agent may deem necessary
or advisable in connection therewith, without the other and with full power of
substitution and revocation, and hereby ratifying all that any such attorney or
his substitute may do by virtue hereby.
Pursuant to the requirements of the Securities and Exchange Act of
1933, this Power of Attorney has been signed by the following person in the
capacity indicated on this 19th day of November, 1999.
/s/ Deborah L. Bevier
-----------------------------------------
Deborah L. Bevier
<PAGE> 1
EXHIBIT 24.4
POWER OF ATTORNEY
The undersigned Director of The Ackerley Group, Inc. ("Company")
appoints each of Barry A. Ackerley, Denis M. Curley and Keith W. Ritzmann his
true and lawful attorney and agent, in name and on behalf of the undersigned, in
any and all registration statements (including without limitation, any
registration statement filed pursuant to Rule 462(b) promulgated under the
Securities Act of 1933) and any and all amendments and post-effective amendments
and exhibits thereto in connection with the offering by the Company of shares of
its common stock under the Company's Employee Stock Purchase Plan and the
Company's Employees Stock Option Plan, and to do any and all acts and things and
execute any and all instruments which the attorney and agent may deem necessary
or advisable in connection therewith, without the other and with full power of
substitution and revocation, and hereby ratifying all that any such attorney or
his substitute may do by virtue hereby.
Pursuant to the requirements of the Securities and Exchange Act of
1933, this Power of Attorney has been signed by the following person in the
capacity indicated on this 19th day of November, 1999.
/s/ Michel C. Thielen
-----------------------------------------
Michel C. Thielen
<PAGE> 1
Exhibit 24.5
THE ACKERLEY GROUP, INC.
UNANIMOUS WRITTEN CONSENT TO ACTION
OF THE BOARD OF DIRECTORS
IN LIEU OF SPECIAL MEETING
November 10, 1999
Pursuant to Section 141(f) of the General Corporation Law of Delaware,
the undersigned, being all of the directors of THE ACKERLEY GROUP, INC., a
Delaware corporation ("Corporation"), consent to the adoption of the following
resolutions without a meeting:
RECITALS
1. Management of the Corporation has recommended that the Corporation
adopt an Employee Stock Purchase Plan which will allow certain
employees to purchase shares of the Corporation's Common Stock, $.01
par value per share ("Common Stock") at a discount and through payroll
deductions. In order to issue such shares under the Option Plan, the
Corporation must register the shares with the Securities and Exchange
Commission.
2. At the 1999 Annual Meeting, the Corporation's shareholders approved the
Fourth Amended and Restated Employees Stock Option Plan dated May 11,
1999 (the "Option Plan"), which increased the number of shares of
Common Stock authorized for issuance under the Option Plan from
1,000,000 shares to 1,500,000 shares, reflecting the addition to the
Option Plan of 500,000 shares of Common Stock ("Additional Shares").
3. The Corporation previously filed Registration Statements on Form-8
registering an aggregate 1,000,000 shares of Common Stock (as adjusted
to reflect stock dividends and stock splits).
4. The Corporation must register with the Securities and Exchange
Commission (the "Commission") the Additional Shares authorized under
the Option Plan.
5. Daniel J. Evans, Jr. has been acting in the capacity of Vice
President/Public Affairs, but was inadvertently omitted from the list
of officers elected by the Board in its annual consent resolutions
dated May 1, 1999. Management has requested that the Board take action
to correct this oversight.
RESOLUTIONS
EMPLOYEE STOCK PURCHASE PLAN
1. The Board of Directors hereby authorizes and approves the Employee
Stock Purchase Plan ("ESPP"), in substantially the form presented to
the Board and attached hereto as Exhibit A, with certain employees of
the Corporation or of any of its designated
1
<PAGE> 2
subsidiaries, to sell to such employees, and for such employees to
purchase, shares of the Common Stock pursuant to the terms and
conditions outlined in the ESPP.
2. In order to provide certain key employees with additional incentive
compensation, the Proper Officers, and any of them, are authorized and
directed, in the name and on behalf of the Corporation, to execute and
deliver the ESPP.
3. The Proper Officers, and any of them, are authorized and directed, in
the name and on behalf of the Corporation, with the advice of counsel,
to enter into a Service Agreement, with AST Stock Plan, Inc. ("AST"),
in connection with the administration of the proposed ESPP by AST,
described in Exhibit B attached hereto, and such other services
mutually agreed in writing from time to time by AST and the
Corporation.
REGISTRATION STATEMENT
4. A Registration Statement on Form S-8 ("Registration Statement"), in
substantially the form presented to the Board, for 2,000,000 shares of
Common Stock, consisting of 1,500,000 shares authorized for issuance
under the ESPP and the 500,000 Additional Shares authorized for
issuance under the Option Plan is approved, and the Proper Officers,
and any of them, with the assistance of counsel, are authorized and
directed, for and on behalf of the Corporation, to prepare, execute and
file the Registration Statement with the Commission under the
Securities Act of 1933, together with all schedules and exhibits, with
such additions and changes as the Proper Officers, or any of them, may
approve, and with such approval to be conclusively evidenced by the
filing of the Registration Statement with the Commission.
5. Each of the officers of the Corporation who may be required to sign and
execute the Registration Statement or any amendment thereto or related
documents, is authorized to execute a Power of Attorney, appointing the
Proper Officers or any of them individually, to act as his/her true and
lawful attorney or attorneys, to sign in his/her name, place and stead,
in any such capacity, the Registration Statement and all amendments and
other related documents, and to file the same with the Commission.
ADDITIONAL LISTING APPLICATION
6. The Proper Officers, and any of them, are authorized and directed, in
the name and on behalf of the Corporation, to file an Additional
Listing Application ("Additional Listing") with the New York Stock
Exchange, Inc., and to take any and all action as may be necessary or
appropriate, to effect the Additional Listing of the ESPP shares and
the Additional Shares, for quotation on the New York Stock Exchange.
7. The Proper Officers, and any of them, are authorized and directed, in
the name and on behalf of the Corporation, to prepare, execute and file
any and all amendments to the Registration Statement, any schedules and
exhibits, as they, or any of them, find necessary or desirable or as
may be required by the Commission or under the Blue Sky or other
applicable law of any jurisdiction, and to do such other acts or things
and execute such other instruments, agreements and other documents as
any of them may deem necessary or desirable to cause the Registration
Statement, as amended and
2
<PAGE> 3
supplemented, to comply with the Act and the rules and regulations
under the Act ("Rules and Regulations") and with the Blue Sky or other
applicable laws of any jurisdiction, and to cause the Registration
Statement to become effective under the Act and the Rules and
Regulations.
ELECTION OF VICE PRESIDENT/PUBLIC AFFAIRS
8. The Board of Directors hereby elects, effective May 1, 1999, Daniel J.
Evans, Jr. to the position of Vice President/Public Affairs to serve
until the next annual meeting of the Board of Directors and until his
successor is elected and qualified, and ratifies all actions taken by
him in that capacity since May 1, 1999.
PROPER OFFICERS
9. The Proper Officers for purposes of these resolutions are Barry A.
Ackerley, Gail A. Ackerley, Denis M. Curley Christopher H. Ackerley,
and Keith W. Ritzmann.
[Signatures appear on next page.]
3
<PAGE> 4
UNANIMOUS CONSENT
The undersigned, constituting the Board of Directors of THE ACKERLEY
GROUP, INC., consent to the foregoing action effective as of the 10th day of
November, 1999. This document may be signed in two or more counterparts,
manually or via facsimile, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
/s/ Barry A. Ackerley
--------------------------
Barry A. Ackerley
/s/ Gail A. Ackerley
--------------------------
Gail A. Ackerley
/s/ Deborah L. Bevier
--------------------------
Deborah L. Bevier
/s/ M. Ian G. Gilchrist
--------------------------
M. Ian G. Gilchrist
/s/ Michel C. Thielen
--------------------------
Michel C. Thielen
4
