1
EXHIBIT 1
FORM OF
CITADEL COMMUNICATIONS CORPORATION
10,000,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
June , 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the several Underwriters
c/o Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Citadel Communications Corporation, a Nevada corporation (the
"Company"), and the stockholders named on Schedule 2 hereto (the "Selling
Stockholders" and each, a "Selling Stockholder") hereby confirm their agreement
with the several underwriters named in Schedule 1 hereto (the "Underwriters"),
for whom you have been duly authorized to act as representative (in such
capacity, the "Representative"), as set forth below.
1. Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the several Underwriters an
aggregate of 5,000,000 shares (the "Company Firm Securities") of the Company's
Common Stock, par value $.001 per share ("Common Stock") and each Selling
Stockholder proposes to sell to the several Underwriters the number of shares of
Common Stock set forth in Schedule 2 hereto opposite the name of such Selling
Stockholder (collectively, with the shares of Common Stock to be issued and sold
by the Company, the "Firm Securities"). The Selling Stockholders also propose to
sell to the several Underwriters not more than 1,500,000 additional shares of
Common Stock as set forth on Schedule 2 hereto if requested by the
Representative as provided in Section 4 of this Agreement. Any and all shares of
Common Stock to be purchased by the Underwriters pursuant to such option are
referred to herein
----------------------------
1 Plus an option to purchase from the Selling Stockholders an aggregate
of up to 1,500,000 additional shares to cover over-allotments.
2
as the "Option Securities," and the Firm Securities and any
Option Securities are collectively referred to herein as the "Securities."
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the several Underwriters
that:
(a) A registration statement on Form S-1 (File No. 333-79277)
with respect to the Securities, including a prospectus subject to completion,
has been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement may have been so filed. After
the execution of this Agreement, the Company will file with the Commission
either (i) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (A) if the
Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined)
relating to the Securities, that shall identify the Preliminary Prospectus (as
hereinafter defined) that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the
Company does not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representative prior
to the execution of this Agreement, or (ii) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the Act, an amendment to such registration statement, including
a form of prospectus, a copy of which amendment has been furnished to and
approved by the Representative prior to the execution of this Agreement. The
Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Securities, which registration shall be effective upon filing with
the Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and included
in the Prospectus (as hereinafter defined); the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement or any amendment
thereto (including the prospectus subject to completion, if any, included in the
Registration Statement or any amendment thereto at the time it was or is
declared effective); the term "Prospectus" means:
2
3
(A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act,
the prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and
if no prospectus is required to be filed pursuant to Rule 424(b) under
the Act, the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. When any Preliminary Prospectus
was filed with the Commission it (i) contained all statements required to be
stated therein in accordance with, and complied in all material respects with
the requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto was or is
declared effective, it (i) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (ii) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the Prospectus or
any Term Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or supplement is not required to be
so filed, when the Registration Statement or the amendment thereto containing
such amendment or supplement to the Prospectus was or is declared effective) and
on the Firm Closing Date and any Option Closing Date (both as hereinafter
defined), the Prospectus, as amended or supplemented at any such time, (i)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein.
3
4
(c) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with and
that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt and (ii) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 promulgated under the Act or the Commission has received payment of such
filing fee.
(d) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations in good standing under the
laws of the State of Nevada and are duly qualified to transact business as
foreign corporations and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective properties or
the conduct of their respective businesses requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs, business
prospects or results of operations of the Company and its subsidiaries, taken as
a whole (a "Material Adverse Effect").
(e) The Company and each of its subsidiaries have full power
(corporate and other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and the Company has full power (corporate and other) to
enter into this Agreement and to carry out all the terms and provisions hereof
to be carried out by it.
(f) The issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and, except as otherwise set forth in the Prospectus or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus,
are owned beneficially by the Company free and clear of any security interests,
liens, encumbrances, equities or claims.
(g) The Company has the authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus as of the dates set forth
therein. All of the issued shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. The Company
Firm Securities have been duly authorized and at the Firm Closing Date, after
payment therefor in accordance herewith, will be validly issued, fully paid and
nonassessable. No holders of outstanding shares of capital stock of the Company
are entitled as such to any preemptive or other rights to subscribe for any of
the Securities, and no holder of securities of the Company has any right which
has not been fully exercised or waived to require the Company to register the
offer or sale of any securities owned by such holder under the Act in the public
offering contemplated by this Agreement.
4
5
(h) The capital stock of the Company conforms to the
description thereof contained in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus.
(i) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no outstanding (A) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such subsidiary, (B) warrants, rights or options to subscribe for
or purchase from the Company or any such subsidiary any such capital stock or
any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares of capital
stock, any such convertible or exchangeable securities or obligations, or any
such warrants, rights or options.
(j) The consolidated financial statements of the Company and
its consolidated subsidiaries, together with the related notes, included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the financial
position of the Company and its consolidated subsidiaries and the results of
operations, cash flows and changes in financial condition as of the dates and
periods therein specified, subject, in the case of unaudited financial
statements of the Company, to normal year-end adjustments which shall not be
materially adverse to the business, results of operations, financial condition
or business prospects of the Company and its subsidiaries, taken as a whole.
Such financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The selected financial data set
forth under the caption "Selected Historical Financial Data" in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) fairly present, on the basis stated in the Prospectus (or such
Preliminary Prospectus), the information included therein.
(k) The pro forma condensed consolidated financial statements
and other pro forma financial information (including the notes thereto) included
in the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) (1) present fairly the
information shown therein; (2) have been prepared in accordance with the
applicable requirements of Regulation S-X promulgated under the Act; (3) have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements; and (4) have been properly computed
on the basis described therein. The assumptions used in the preparation of the
pro forma condensed consolidated financial statements and other pro forma
financial information included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) are reasonable and the adjustments used therein are reasonably
appropriate to give effect to the transactions or circumstances referred to
therein.
(l) The consolidated financial statements of Tele-Media
Broadcasting Company and its Partnership Interests ("Tele-Media"), together with
the related notes, included in the
5
6
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the financial
position of Tele-Media and the results of operations, deficiency in net assets,
cash flows, and changes in financial condition as of the dates and periods
therein specified, subject, in the case of unaudited financial statements of
Tele-Media, to normal year-end adjustments which shall not be materially adverse
to the business, results of operations, financial condition or business
prospects of Tele-Media. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the period involved (except as otherwise noted therein).
(m) The consolidated financial statements of Xxxxxx-Xxxxxxx
Broadcasting Companies, Inc. and its consolidated subsidiaries ("Xxxxxx"),
together with the related notes, included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the financial position of Xxxxxx and the
results of operations and changes in financial condition as of the dates and
periods therein specified. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the period involved (except as otherwise noted therein).
(n) KPMG LLP, who have certified certain financial statements
of: (i) the Company and its consolidated subsidiaries and (ii) Xxxxxx, and have
delivered their report with respect to the audited consolidated financial
statements included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) for each
of the Company and Xxxxxx, are independent public accountants as required by the
Act and the applicable rules and regulations thereunder.
(o) Deloitte & Touche LLP, who have certified certain
financial statements of Tele-Media and delivered their report with respect to
the audited consolidated financial statements included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence the most
recent Preliminary Prospectus) of Tele-Media, are independent public accountants
as required by the Act and the applicable rules and regulations thereunder.
(p) The execution and delivery of this Agreement have been
duly authorized by the Company and this Agreement has been duly executed and
delivered by the Company, and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(q) No legal or governmental proceedings are pending to which
the Company or any of its subsidiaries is a party or to which the property of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not described
therein (or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), and, except as described in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
preliminary Prospectus), no such proceedings have, to the knowledge of the
Company, been threatened against the Company or any of its subsidiaries or with
respect to any of their respective properties; and no contract or other document
is required
6
7
to be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement that is not described therein (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus)
or filed as required.
(r) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the application of the
net proceeds from the sale by the Company of the Company Firm Securities, the
compliance by the Company with the other provisions of this Agreement, and the
consummation of the other transactions herein contemplated do not (i) require
the consent, approval, authorization, registration or qualification of or with
any governmental authority (including, without limitation, the Federal
Communications Commission (the "FCC")), except such as have been obtained, such
as may be required under state securities or blue sky laws and, if the
registration statement filed with respect to the Securities (as amended) is not
effective under the Act as of the time of execution hereof, such as may be
required (and shall be obtained as provided in this Agreement) under the Act, or
(ii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any contract, indenture, mortgage,
loan agreement, note, deed of trust, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties are bound, or
the charter documents (including any certificate of designations) or by-laws of
the Company or any of its subsidiaries, or any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority or any
arbitrator applicable to the Company or any of its subsidiaries. In addition, no
consent, approval, authorization or order of any court or governmental agency or
body (except for such consents, approvals or authorizations as are required by
the FCC) is required for the performance by the Company of the transactions
herein contemplated or by the pending transactions set forth in the Registration
Statement (the "Pending Transactions"), and the Company has no reasonable basis
to believe that the transactions contemplated by the Pending Transactions will
not be consummated in accordance with their terms.
(s) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance or observance of any term, covenant or condition of any contract,
indenture, mortgage, loan agreement, note, deed of trust, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or any of their
respective properties is bound or may be affected in any manner that would
result in a Material Adverse Effect.
(t) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus, neither the Company
nor any of its subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding and there has not been any
Material Adverse Effect, except in each case as described in or contemplated by
the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus.
7
8
(u) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(v) The Company has not distributed and, prior to the later of
(i) the Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any permitted by the Act.
(w) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), the
Company and its subsidiaries validly hold all material licenses, certificates,
permits, consents, authorizations and approvals for the Existing Stations (as
defined below) (collectively, the "Licenses") from governmental authorities
which are necessary to the conduct of their businesses and operations in the
manner and to the full extent now operated or proposed to be operated as
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus); such Licenses were issued and are in full force
and effect and no complaint, action, litigation or other proceeding has been
instituted or is pending or, to the knowledge of the Company, is threatened
which in any manner affects or questions the validity or effectiveness thereof;
such Licenses contain no materially burdensome conditions or restrictions not
customarily imposed by the FCC on radio stations of the same class and type; the
operation of the radio stations identified in the table under "Station
Portfolio" in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) under the caption "Business" (collectively,
the "Existing Stations") in the manner and to the full extent now operated or
proposed to be operated as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), is in compliance with
the Communications Act of 1934, as amended (the "Communications Act"), the
Telecommunications Act of 1996, and all orders, rules, regulations, and policies
of the FCC, except for such noncompliance as would not result in a Material
Adverse Effect; no event has occurred which permits (nor has an event occurred
which with notice or lapse of time or both would permit) the revocation or
termination of any such Licenses or the imposition of any material adverse
restriction or condition thereon or which might result in any other material
impairment of the rights of the Company or its subsidiaries therein; the Company
and its subsidiaries are in compliance with all statutes, orders, rules, and
policies of the FCC relating to or affecting the broadcasting operations of any
of the Existing Stations, except for such noncompliance as would not have a
Material Adverse Effect; other than with respect to the Licenses, the Company
and its subsidiaries own or possess, or can acquire on reasonable terms, all
material patents, patent applications, trademarks, service marks, trade names,
licenses, copyrights and proprietary or other confidential information currently
employed by them in connection with their respective businesses, and neither the
Company nor any such subsidiary has received any notice of infringement of or
8
9
conflict with asserted rights of any third party with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(x) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), (1) the Company
and its subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (2) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (3) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and its consolidated subsidiaries or any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, except in each case
as described in or contemplated by the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
(y) The Company and each of its subsidiaries have good and
marketable title to all items of real property and marketable title to all
personal property owned by each of them, in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other defects,
except such as do not materially and adversely affect the value of such property
and do not interfere with the use made or proposed to be made of such property
by the Company or such subsidiary, and any real property and buildings held
under lease by the Company or any such subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary, and neither the Company nor any
such Subsidiary has received any notice of any claim of any sort that could
result in a Material Adverse Effect that has been asserted by anyone adverse to
the rights of the Company or such subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such
corporation to the continued possession of the leased or subleased premises
under any such lease or sublease, in each case except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(z) To the best knowledge of the Company, no labor problem
exists with the employees of the Company or any of its subsidiaries or is
threatened or imminent that could result in a Material Adverse Effect, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(aa) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such subsidiary has been refused any
insurance coverage applied for; and neither the Company nor any such subsidiary
has any reason to believe that it will not be able to renew its existing
insurance
9
10
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect, except as described in or contemplated
by the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(bb) The Company will conduct its operations in a manner that
will not subject it to registration as an "investment company" or a company
controlled by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act"), and this
transaction will not cause the Company to become an investment company subject
to registration under the 1940 Act.
(cc) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not have a
Material Adverse Effect) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus). The charges, accruals and reserves on the
books of the Company in respect of any income and corporation tax liability for
any years not finally determined are adequate to meet any assessments or
re-assessments for additional income tax for any years not finally determined,
except to the extent of any inadequacy that would not have a Material Adverse
Effect.
(dd) The statistical and market-related data included in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) are derived from sources which the Company believes to
be reliable and accurate in all material respects for the periods and dates
indicated in the Prospectus.
(ee) Except for the shares of capital stock of each of the
subsidiaries owned by the Company and such subsidiaries, and except for (i)
8,499 shares of capital stock of Lamont's Apparel, Inc., (ii) 9 shares of
capital stock of Trans World Airlines, Inc. (iii) 394 shares of capital stock of
BMI, (iv) 50,000 shares of capital stock of USA Digital Radio, Inc. and (v) 46
shares of capital stock of Wherehouse Entertainment, Inc. owned either by the
Company or Citadel Broadcasting Company, neither the Company nor any such
subsidiary owns any shares of stock or any other equity securities of any
corporation or has any equity interest in any firm, partnership, association or
other entity, except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(ff) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) or
except as would not individually or in the aggregate have a Material Adverse
Effect, (A) the Company and its subsidiaries are each in compliance with all
applicable Environmental Laws, (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are in
10
11
compliance with their requirements, (C) there are no pending or, to the
knowledge of the Company, threatened Environmental Claims against the Company or
its subsidiaries, and (D) there are no circumstances with respect to any
property or operations of the Company or its subsidiaries that could reasonably
be anticipated to form the basis of an Environmental Claim against the Company
or its subsidiaries.
(gg) For purposes of this Agreement, the following terms shall
have the following meanings: "Environmental Law" means any United States (or
other applicable jurisdiction's) federal, state, local or municipal statute,
law, rule, regulation, ordinance, code, or rule of common law and any judicial
or administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating to the environment,
or human health and safety or any chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority.
"Environmental Claims" means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigations or proceedings filed, issued or brought pursuant to
any Environmental Law.
(hh) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company, or from
transferring any of such subsidiary's property or assets to the Company or any
other subsidiary of the Company, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(ii) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with management's
general or specific authorizations; (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (3) access
to assets is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(jj) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company would have any liability; the Company has not incurred and
does not expect to incur liability under (A) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (B) Sections 412 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.
11
12
(kk) Neither the Company nor any of its Subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or its subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of any provision of the Foreign Corrupt Practices Act of 1977; or
made any unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ll) The Company is in full compliance with its obligations
under the Third Amended and Restated Registration Rights Agreement dated as of
June 28, 1996, as amended to date.
(mm) Each certificate signed by any officer of the Company and
delivered to the Representative or counsel for the Underwriters pursuant to this
Agreement shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
(nn) All disclosure regarding year 2000 compliance that is
required to be described in a registration statement on Form S-1 under the Act
(including disclosures required by Staff Legal Bulletin Xx. 0, XXX Xxxxxxx Xx.
00-0000 (July 29, 1998) and SEC Release No. 33-7609 (Nov. 9, 1998)) has been
included or incorporated by reference in the Registration Statement and the
Prospectus. Other than as disclosed in the Registration Statement and the
Prospectus, the Company and its subsidiaries (i) will not incur significant
operating expenses or costs to ensure that their operating and information
systems will be year 2000 compliant ("Y2K Compliant"), (ii) will not experience
a Material Adverse Effect from the failure to become Y2K Compliant and (iii)
reasonably believes, based on inquiries made and still in progress on the date
hereof, that the suppliers, vendors, customers or other material third parties
used or served by the Company and its subsidiaries are or will be Y2K Compliant
in a timely manner, except to the extent that a failure to become Y2K Compliant
by any supplier, vendor, customer or material third party would not have a
Material Adverse Effect.
3. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder represents and warrants to, and agrees
with, each of the several Underwriters that:
(a) Such Selling Stockholder has full power (corporate and/or
other) to enter into this Agreement and to sell, assign, transfer and deliver to
the Underwriters the Securities to be sold by such Selling Stockholder hereunder
in accordance with the terms of this Agreement; the execution and delivery of
this Agreement have been duly authorized by all necessary corporate action, if
any, of such Selling Stockholder; and this Agreement has been duly executed and
delivered by such Selling Stockholder, and is the valid and binding agreement of
such Selling Stockholder, enforceable against such Selling Stockholder in
accordance with its terms.
(b) Such Selling Stockholder has duly executed and delivered a
Selling Stockholder's Irrevocable Power of Attorney and Letter of Transmittal
and Custody Agreement
12
13
(with respect to such Selling Stockholder, the "Power-of-Attorney" and the
"Custody Agreement," respectively), each in the form heretofore delivered to the
Representative; each of the Selling Stockholders have appointed Xxxxxxxx X.
Xxxxxx as an attorney-in-fact for such Selling Stockholder (the
"Attorney-in-Fact") with authority to execute, deliver and perform this
Agreement on behalf of such Selling Stockholder and appointing BankBoston, N.A.
as custodian thereunder (the "Custodian"). Certificates in negotiable form,
endorsed in blank or accompanied by blank stock powers duly executed, with
signatures appropriately guaranteed, representing the Securities to be sold by
such Selling Stockholder hereunder have been deposited with the Custodian
pursuant to the Custody Agreement for the purpose of delivery pursuant to this
Agreement. Such Selling Stockholder has full power (corporate and/or other) to
enter into the Custody Agreement and the Power-of-Attorney and to perform its
obligations under the Custody Agreement. The execution and delivery of the
Custody Agreement and the Power-of-Attorney have been duly authorized by all
necessary corporate action, if any, of such Selling Stockholder; the Custody
Agreement and the Power-of-Attorney have been duly executed and delivered by
such Selling Stockholder and, assuming due authorization, execution and delivery
by the Custodian, are the legal, valid, binding and enforceable instruments of
such Selling Stockholder, enforceable against such Selling Stockholder in
accordance with their respective terms. Such Selling Stockholder agrees that
each of the Securities represented by the certificates on deposit with the
Custodian is subject to the interests of the Underwriters hereunder, that the
arrangements made for such custody, the appointment of the Attorney-in-Fact and
the right, power and authority of the Attorney-in-Fact to execute and deliver
this Agreement, to agree on the price at which the Securities (including such
Selling Stockholder's Securities) are to be sold to the Underwriters, and to
carry out the terms of this Agreement, are to that extent irrevocable and that
the obligations of such Selling Stockholder hereunder shall not be terminated,
except as provided in this Agreement or the Custody Agreement, by any act of
such Selling Stockholder, by operation of law or otherwise, whether in the case
of any individual Selling Stockholder by the death or incapacity of such Selling
Stockholder, in the case of a trust or estate by the death of the trustee or
trustees or the executor or executors or the termination of such trust or
estate, or in the case of a corporate or partnership Selling Stockholder by its
liquidation or dissolution or by the occurrence of any other event. If any
individual Selling Stockholder, trustee or executor should die or become
incapacitated or any such trust should be terminated, or if any corporate or
partnership Selling Stockholder shall liquidate or dissolve, or if any other
event should occur, before the delivery of such Securities hereunder, the
certificates for such Securities deposited with the Custodian shall be delivered
by the Custodian in accordance with the respective terms and conditions of this
Agreement as if such death, incapacity, termination, liquidation or dissolution
or other event had not occurred, regardless of whether or not the Custodian or
the Attorney-in-Fact shall have received notice thereof.
(c) The Securities to be sold by such Selling Stockholder
pursuant to this Agreement are certificated securities in registered form and
are not held in any securities account or by or through any securities
intermediary within the meaning of the Uniform Commercial Code applicable to
such Selling Stockholder ("UCC"). Such Selling Stockholder has, and, at the Firm
Closing Date and, if any Option Securities are purchased, on the Option Closing
Date, will have, full right, power and authority to hold, sell, transfer and
deliver the Securities to be sold by such Selling
13
14
Stockholder pursuant to this Agreement; and upon the Underwriters' acquiring
possession of such Securities and paying the purchase price therefor as herein
contemplated, the Underwriters will acquire their respective interests in such
Securities (including, without limitation, all rights that such Selling
Stockholder had or has the power to transfer in such Securities) free of any
adverse claim.
(d) Such Selling Stockholder has not, directly or indirectly,
(i) taken any action designed to cause or result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities or (ii) since the filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company (except for the sale of Securities by the Selling Stockholders
under this Agreement).
(e) Such Selling Stockholder has not distributed and, prior to
the later of (a) the Closing Date and (b) the completion of the distribution of
the Securities, will not distribute any offering material in connection with the
offering and sale of the shares other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the Act.
(f) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of 1986, as
amended, with respect to the transactions herein contemplated, such Selling
Stockholder agrees to deliver to you prior to or on the Firm Closing Date, as
hereinafter defined, a properly completed and executed United States Treasury
Department Form W-8 or W-9 (or other applicable form of statement specified by
Treasury Department regulations in lieu thereof).
(g) To the extent that any statements or omissions are made in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder specifically
for use therein, such Preliminary Prospectus did conform, and the Registration
Statement and the Prospectus and any amendments or supplements thereto, when
they become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and the
respective rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or 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 are made, not misleading.
Such Selling Stockholder has reviewed the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and the Registration
Statement, and the information regarding such Selling Stockholder set forth
therein under the caption "Principal and Selling Stockholders" is complete and
accurate as it relates to such Selling Stockholder to the extent required by the
rules and regulations of the Commission.
14
15
(h) The sale by such Selling Stockholder of Securities
pursuant hereto is not prompted by any adverse information concerning the
Company.
(i) The sale of the Securities to the Underwriters by such
Selling Stockholder pursuant to this Agreement, the compliance by such Selling
Stockholder with the other provisions of this Agreement, the Custody Agreement
and the Power-of-Attorney and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except such
as have been obtained, such as may be required under state securities or blue
sky laws and, if the registration statement filed with respect to the Securities
(as amended) is not effective under the Act as of the time of execution hereof,
such as may be required (and shall be obtained as provided in this Agreement)
under the Act, or (ii) conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default under any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder or any of
such Selling Stockholder's properties are bound, or the charter documents or
by-laws of such Selling Stockholder or any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority or any
arbitrator applicable to such Selling Stockholder.
4. Purchase, Sale and Delivery of the Securities. (a) On the
basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, the Company
and the Selling Stockholders agree, severally and not jointly, to issue and sell
to each of the Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company and the Selling Stockholders, at a
purchase price of $_____ per share, the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule 1 hereto. One or more
certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representative request
upon notice to the Company at least 48 hours prior to the Firm Closing Date,
shall be delivered by or on behalf of the Company and the Selling Stockholders
to the Representative for the respective accounts of the Underwriters, against
payment by or on behalf of the Underwriters of the purchase price therefor by
wire transfer in same-day funds (the "Wired Funds") to the respective accounts
of the Company and the Custodian on behalf of the Selling Stockholders. Such
delivery of and payment for the Firm Securities shall be made at the offices of
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:30
A.M., New York time, on June [__], 1999, or at such other place, time or date as
the Representative and the Company may agree upon or as the Representative may
determine pursuant to Section 10 hereof, such time and date of delivery against
payment being herein referred to as the "Firm Closing Date." The Company and the
Custodian will make such certificate or certificates for the Firm Securities
available for checking and packaging by the Representative at the offices in New
York, New York of the Company's transfer agent or registrar or of Credit Suisse
First Boston Corporation at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as contemplated
by the Prospectus, the Selling
15
16
Stockholders hereby grant to the several Underwriters an option to purchase,
severally and not jointly, the Option Securities in the respective share amounts
indicated on Schedule 2 hereto. The purchase price to be paid for any Option
Securities shall be the same price per share as the price per share for the Firm
Securities set forth above in paragraph (a) of this Section 4. The option
granted hereby may be exercised as to all or any part of the Option Securities
from time to time within thirty (30) days after the date of the Prospectus (or,
if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading).
The Underwriters shall not be under any obligation to purchase any of the Option
Securities prior to the exercise of such option. The Representative may from
time to time exercise the option granted hereby by giving notice in writing or
by telephone (confirmed in writing) to the Custodian and the Company setting
forth the aggregate number of Option Securities as to which the several
Underwriters are then exercising the option and the date and time for delivery
of and payment for such Option Securities. Any such date of delivery shall be
determined by the Representative but shall not be earlier than two business days
or later than five business days after such exercise of the option and, in any
event, shall not be earlier than the Firm Closing Date. The time and date set
forth in such notice, or such other time on such other date as the
Representative and Custodian may agree upon or as the Representative may
determine pursuant to Section 10 hereof, is herein called the "Option Closing
Date" with respect to such Option Securities. Upon exercise of the option as
provided herein, the Selling Stockholders shall become obligated to sell to each
of the several Underwriters, and, subject to the terms and conditions herein set
forth, each of the Underwriters (severally and not jointly) shall become
obligated to purchase from the Selling Stockholders, the same percentage of the
total number of the Option Securities as to which the several Underwriters are
then exercising the option as such Underwriter is obligated to purchase of the
aggregate number of Firm Securities, as adjusted by the Representative in such
manner as they deem advisable to avoid fractional shares. If the option is
exercised as to all or any portion of the Option Securities, one or more
certificates in definitive form for such Option Securities, and payment
therefor, shall be delivered on the related Option Closing Date in the manner,
and upon the terms and conditions, set forth in paragraph (a) of this Section 4,
except that reference therein to the Firm Securities and the Firm Closing Date
shall be deemed, for purposes of this paragraph (b), to refer to such Option
Securities and Option Closing Date, respectively.
(c) The Company and each Selling Stockholder hereby
acknowledge that the wire transfer by or on behalf of the Underwriters of the
purchase price for any Securities does not constitute closing of a purchase and
sale of the Securities. Only execution and delivery of a receipt for the
Securities by the Underwriters indicates completion of the closing of a purchase
of the Securities from the Company or such Selling Stockholder, as the case may
be. Furthermore, in the event that the Underwriters wire funds to the Company or
such Selling Stockholder prior to the completion of the closing of a purchase of
Securities, the Company and each Selling Stockholder hereby acknowledge that
until the Underwriters execute and deliver a receipt for the Securities, by
facsimile or otherwise, the Company or such Selling Stockholder, as the case may
be, will not be entitled to the Wired Funds and shall return the Wired Funds to
the Underwriters as soon as practicable (by wire transfer of same-day funds)
upon demand. In the event that the closing of a purchase of the Securities is
not completed and the Wired Funds are not returned by the Company
16
17
or such Selling Stockholder, as the case may be, to the Underwriters on the same
day the Wired Funds were received by the Company or such Selling Stockholder,
the Company and each Selling Stockholder agrees to pay to the Underwriters in
respect of each day the Wired Funds are not returned by it, in same-day funds,
interest on the amount of such Wired Funds in an amount representing the
Underwriters' cost of financing as reasonably determined by Credit Suisse First
Boston Corporation.
(d) It is understood that any of you, individually and not as
one of the Representative, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
5. Offering by the Underwriters. Upon your authorization of
the release of the Firm Securities, the several Underwriters propose to offer
the Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
6. Covenants of the Company and of the Selling Stockholders.
The Company (with respect only to paragraphs 6(a) through 6(m) below) and each
Selling Stockholder (with respect only to paragraphs 6(n) and 6(o) below)
covenant and agree with each of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term Sheet
that constitutes a part thereof and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Company (i) will
comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement of which the
Representative previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which filing
the Representative shall not have given their consent. The Company will prepare
and file with the Commission, in accordance with the rules and regulations of
the Commission, promptly upon request by the Representative or counsel for the
Underwriters, any amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary or advisable in connection
with the distribution of the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to the Registration Statement
to be declared effective by the Commission as promptly as possible. The Company
will advise the Representative, promptly after
17
18
receiving notice thereof, of the time when the Registration Statement or any
amendment thereto has been filed or declared effective or the Prospectus or any
amendment or supplement thereto has been filed and will provide evidence
satisfactory to the Representative of each such filing or effectiveness.
(b) The Company will advise the Representative, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representative may designate, will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities and will file such statements and reports as may
be required by the laws of each jurisdiction in which the Securities have been
qualified as above provided; provided, however, that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date
when a prospectus relating to the Securities is required to be delivered under
the Act or (ii) the Option Closing Date, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is necessary at
any time to amend or supplement the Prospectus to comply with the Act or the
rules or regulations of the Commission thereunder, the Company will promptly
notify the Representative thereof and, subject to Section 6(a) hereof, will
promptly prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the
Representative and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits
18
19
thereto) and (iii) so long as a prospectus relating to the Securities is
required to be delivered under the Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto as the
Representative may reasonably request; without limiting the application of
clause (iii) of this sentence, the Company, not later than (A) 6:00 PM, New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 10:00 A.M., New York City time, on such
date or (B) 2:00 PM, New York City time, on the business day following the date
of determination of the public offering price, if such determination occurred
after 10:00 A.M., New York City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the Prospectus and any amendment
or supplement thereto as the Representative may reasonably request for purposes
of confirming orders that are expected to settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally
available to its stockholders and to the Representative a consolidated earnings
statement of the Company and its subsidiaries that satisfies the provisions of
Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the
prior written consent of Credit Suisse First Boston Corporation, on behalf of
the Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant
any option to purchase or otherwise sell or dispose (or announce any offer,
sale, offer of sale, contract of sale, pledge, grant of any option to purchase
or other sale or disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common Stock for
a period of 90 days after the date hereof, except (i) pursuant to this
Agreement, (ii) for issuances pursuant to the exercise of employee stock options
outstanding on the date hereof and (iii) for issuances pursuant to the exercise
of employee stock options to be granted under the 1999 Long-Term Incentive Plan.
(i) The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) The Company will obtain the agreements described in
Section 8(i) hereof prior to the Firm Closing Date.
(k) If, at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion the market price of the
Common Stock has been or is reasonably likely to be materially affected
(regardless of
19
20
whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus), the Company will, after notice from you advising
the Company to the effect set forth above, forthwith prepare, consult with you
concerning the substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting on such
rumor, publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on
the date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(m) The Company will cause the Securities to be duly included
for quotation on the Nasdaq Stock Market's National Market (the "Nasdaq National
Market") prior to the Firm Closing Date. The Company will use reasonable efforts
to ensure that the Securities remain included for quotation on the Nasdaq
National Market or listed on a national exchange; provided that reasonable
efforts shall not be construed to limit or restrict the exercise by the Board of
Directors of the Company of their fiduciary duties.
(n) Each Selling Stockholder will not, directly or indirectly,
without the prior written consent of Credit Suisse First Boston Corporation,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, contract of
sale, pledge, grant of any option to purchase or other sale or disposition) of
any Securities legally or beneficially owned by such Selling Stockholder or any
securities convertible into, or exchangeable or exercisable for, Securities for
a period of 90 days after the date hereof, other than (i) as a gift or gifts,
provided the donee or donees thereof agree in writing to be bound by this
paragraph (n) or (ii) transfers to a transferor's affiliate, as such term is
defined in Rule 405 promulgated under the Act, provided the transferee or
transferees thereof agree in writing to be bound by this paragraph (n).
(o) Such Selling Stockholder will not, directly or indirectly,
(i) take any action designed to cause or result in; or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities or (ii) (A) sell, bid for, purchase, or pay anyone
any compensation for soliciting purchases of, the Securities or (B) pay or agree
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company (except for the sale of Securities by the
Selling Stockholders under this Agreement).
7. Expenses. The Company will pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 12 hereof, including all costs and expenses
incident to (i) the printing or other production of documents with respect to
the transactions, including any costs of printing the registration statement
originally filed with
20
21
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters relating thereto, (vi) the filing fees of the Commission and the
National Association of Securities Dealers, Inc. relating to the Securities,
(vii) any quotation of the Securities on the Nasdaq National Market, (viii) any
meetings with prospective investors in the Securities (other than as shall have
been specifically approved by the Representative to be paid for by the
Underwriters) and (ix) advertising relating to the offering of the Securities
(other than as shall have been specifically approved by the Representative to be
paid for by the Underwriters). If the sale of the Securities provided for herein
is not consummated because any condition to the obligations of the Underwriters
set forth in Section 8 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 12 hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
counsel fees and disbursements) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities. The Company
shall not in any event be liable to any of the Underwriters for the loss of
anticipated profits from the transactions covered by this Agreement. The Selling
Stockholders will pay all costs and expenses incident to the performance of
their obligations under this Agreement in accordance with the provisions of the
Registration Rights Agreement.
8. Conditions of the Underwriters' Obligations. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities shall be subject, in the Representative's sole discretion, to the
accuracy of the representations and warranties of the Company and the Selling
Stockholders contained herein as of the date hereof and as of the Firm Closing
Date, as if made on and as of the Firm Closing Date, to the accuracy of the
statements of the Company's officers made pursuant to the provisions hereof, to
the performance by the Company and the Selling Stockholders of their respective
covenants and agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment
thereto filed prior to the Firm Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have been declared effective not later than
the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment
to the registration statement originally filed with respect to the Securities or
to the Registration Statement, as the case may be, containing information
regarding the initial public offering price of the Securities has been filed
with the Commission and (ii) the time confirmations are sent or given as
specified by Rule 462(b)(2), or with respect to the Original Registration
Statement, or such later time and date as shall
21
22
have been consented to by the Representative; if required, the Prospectus or any
Term Sheet that constitutes a part thereof and any amendment or supplement
thereto shall have been filed with the Commission in the manner and within the
time period required by Rules 434 and 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Representative, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representative shall have received an opinion, dated
the Firm Closing Date, of Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC, counsel for the
Company, to the effect that:
(i) the Company and each of its subsidiaries listed on Exhibit
21 to the Registration Statement (the "Subsidiaries") have been duly
organized and are validly existing as corporations in good standing
under the laws of the State of Nevada and are duly qualified to
transact business as foreign corporations and are in good standing
under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their
respective businesses requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect;
(ii) the Company and each of the Subsidiaries have corporate
power to own, or lease their respective properties and conduct their
respective businesses as described in the Registration Statement and
the Prospectus, and the Company has corporate power to enter into this
Agreement and to carry out all the terms and provisions hereof to be
carried out by it;
(iii) the issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and, except as described in the Prospectus, are
owned beneficially by the Company free and clear of any perfected
security interests or, to the best knowledge of such counsel, any other
security interests, liens, encumbrances, equities or claims;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus as of the date set forth
therein; since the date of its representation of the Company, which is
indicated in the opinion of such counsel, all of the issued shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable, have been issued in
compliance with all applicable federal and state securities laws and
were not issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities; the Company Firm
Securities have been duly authorized by all necessary corporate action
of the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued, fully
paid and nonassessable; the Securities have been duly included for
trading on the Nasdaq National Market; no holders of outstanding shares
of capital stock of the
22
23
Company are entitled as such to any preemptive or other rights to
subscribe for any of the Securities and no holders of securities of the
Company have any rights which have not been fully exercised or waived
to require the Company to register the offer and sale of any securities
owned by such holders under the Act in the public offering contemplated
by this Agreement;
(v) the statements set forth under the headings, "Principal
and Selling Stockholders," "Description of Capital Stock" and
"Description of Indebtedness" in the Prospectus, insofar as such
statements purport to summarize certain provisions of the capital stock
of the Company, provide a fair and accurate summary of such provisions;
and the statements set forth under the headings "Risk Factors,"
"Capitalization," "Recently Completed and Pending Transactions,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Pending Transactions,"
"Management," "Certain Transactions," "Principal and Selling
Stockholders," "Description of Capital Stock" and "Description of
Indebtedness" in the Prospectus, insofar as such statements constitute
a summary of the legal matters, documents or proceedings referred to
therein, provide a fair and accurate summary of such legal matters,
documents and proceedings;
(vi) the execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of the Company and
this Agreement has been duly executed and delivered by the Company;
(vii) (A) no legal or governmental proceedings are pending to
which the Company or any of the Subsidiaries is a party or to which the
property of the Company or any of the Subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not described therein, and, to the best knowledge of
such counsel, no such proceedings have been threatened against the
Company or any of the Subsidiaries or with respect to any of their
respective properties and (B) no contract or other document is required
to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that is not
described therein or filed as required;
(viii) the issuance, offering and sale of the Securities to
the Underwriters by the Company pursuant to this Agreement, the
application of the net proceeds from the sale of the Securities, the
compliance by the Company with the other provisions of this Agreement,
and the consummation of the other transactions herein contemplated do
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority (including, without
limitation, the FCC), except such as have been obtained and such as may
be required under state securities or blue sky laws, or (B) conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any contract, indenture,
mortgage, loan agreement, note, deed of trust, lease or other agreement
or instrument, known to such counsel, to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound, or the
charter documents (including any certificate of
23
24
designations) or by-laws of the Company or any of the Subsidiaries, or
any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator known to such
counsel and applicable to the Company or the Subsidiaries;
(ix) the Registration Statement is effective under the Act;
any required filing of the Prospectus, or any Term Sheet that
constitutes a part thereof, pursuant to Rules 434 and 424(b) has been
made in the manner and within the time period required by Rules 434 and
424(b); and no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or, to the best
knowledge of such counsel, are threatened or contemplated by the
Commission;
(x) the Registration Statement originally filed with
respect to the Securities and each amendment thereto, any Rule 462(b)
Registration Statement and the Prospectus (in each case, other than the
financial statements and other financial information and statistical
data contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the rules and regulations of the Commission
thereunder;
(xi) if the Company elects to rely on Rule 434, the
Prospectus is not "materially different," as such term is used in Rule
434, from the prospectus included in the Registration Statement at the
time of its effectiveness or an effective post-effective amendment
thereto (including such information that is permitted to be omitted
pursuant to Rule 430A);
(xii) the Company is not, and, immediately after giving
effect to the offering and sale of the Company Firm Securities and the
application of the proceeds thereof as described in the Prospectus will
not be, an "investment company" as such term is defined in the 1940
Act; and
(xiii) the form of stock certificate for the Company Firm
Securities conforms to the requirements of the Nevada General
Corporation Law, the Company's Amended and Restated Articles of
Incorporation and By-Laws and applicable Nasdaq requirements and has
been duly authorized and approved by the Board of Directors of the
Company.
Such counsel shall also state that it has participated in
conferences with officers and other representatives of the Company,
representatives of Shearman & Sterling (Underwriters' counsel), representatives
of the independent accountants for the Company and representatives of the
Underwriters, at which the contents of the Registration Statement and Prospectus
were discussed and, although such counsel is not passing on and does not assume
responsibility for the accuracy, completeness and fairness of the statements
contained in the Registration Statement or the Prospectus, on the basis of the
foregoing, no facts have come to such counsel's attention that would lead them
to believe that the Registration Statement, as of its effective date, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or
24
25
necessary to make the statements therein not misleading or that the Prospectus,
as of its date or the date of such opinion, included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials, as to matters
involving the application of laws of the State of Nevada, to the extent
reasonably satisfactory in form and scope to counsel for the Underwriters, upon
the opinion of Lionel, Xxxxxx & Xxxxxxx and, as to antitrust matters and matters
involving the FCC, to the extent reasonably satisfactory in form and scope to
counsel for the Underwriters, upon the opinions of Xxxx Xxxxx Xxxx & XxXxxx,
antitrust counsel to the Company, and Wiley, Rein & Fielding, FCC counsel to the
Company, respectively. In addition, the Underwriters are justified in relying
upon such opinion of Lionel, Xxxxxx & Xxxxxxx, and copies of such opinion shall
be delivered to the Representative and to Shearman & Sterling.
References to the Registration Statement and the Prospectus in
this paragraph (b) shall include any amendment or supplement thereto at the date
of such opinion.
(c) The Representative shall have received an opinion, dated
the Firm Closing Date, of (i) Xxxx Xxxxx Xxxx & XxXxxx, antitrust counsel to the
Company, covering such antitrust matters as the Representative may reasonably
require, and otherwise in form and substance reasonably satisfactory to the
Representative and (ii) Wiley, Rein & Fielding, FCC counsel to the Company,
covering such regulatory matters as the Representative may reasonably require,
and otherwise in form and substance reasonably satisfactory to the
Representative.
(d) The Selling Stockholders shall have furnished to the
Representative the opinion of such Selling Stockholder's counsel, dated the date
hereof, which opinion shall be confirmed in writing to the Representative on the
Closing Date, to the effect that:
(i) such Selling Stockholder has full power (corporate and/or
other) to enter into this Agreement, the Custody Agreement and the
Power-of-Attorney and to sell, transfer and deliver the Securities
being sold by such Selling Stockholder hereunder in the manner provided
in this Agreement and to perform its obligations under the Custody
Agreement; the execution and delivery of this Agreement, the Custody
Agreement and the Power-of-Attorney have been duly authorized by all
necessary action (corporate and/or other) of each Selling Stockholder;
this Agreement, the Custody Agreement and the Power-of-Attorney have
been duly executed and delivered by or on behalf of each Selling
Stockholder; assuming due authorization, execution and delivery by the
Custodian, the Custody Agreement and the Power-of-Attorney are the
legal, valid, binding and enforceable instruments of such Selling
Stockholder, enforceable against it in accordance with their respective
terms, subject to applicable bankruptcy, insolvency and similar laws
affecting
25
26
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);
(ii) such Selling Stockholder has full right, power and
authority to sell, transfer and deliver such Securities pursuant to
this Agreement. Assuming that (i) the Securities to be sold by such
Selling Stockholder are not held in any securities account or by or
through a securities intermediary within the meaning of the UCC, (ii)
the certificate or certificates representing the Securities to be sold
by such Selling Stockholder pursuant to this Agreement have been
effectively indorsed in blank in accordance with UCC Article 8 and
(iii) the Underwriters are without notice of any adverse claim to the
Securities, then, upon the Underwriters' acquiring possession of such
certificate or certificates for the Securities and paying the purchase
price therefor pursuant to this Agreement, each Underwriter will be a
"protected purchaser" of the Securities to be purchased by it (within
the meaning of Section 8-303 of the UCC) and will acquire its interest
in such Securities (including, without limitation, all rights that such
Selling Stockholder had or has the power to transfer in such
Securities) free of an adverse claim;
(iii) the sale of the Securities to the Underwriters by such
Selling Stockholder pursuant to this Agreement, the compliance by such
Selling Stockholder with the other provisions of this Agreement, the
Custody Agreement and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained and such as may be required under the
Act and state securities or blue sky laws, or (ii) conflict with or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under any indenture, mortgage, deed of trust,
lease or other agreement or instrument known to such counsel to which
such Selling Stockholder or, if applicable, any subsidiaries, is a
party or by which such Selling Stockholder or, if applicable, any of
its subsidiaries, or any of such Selling Stockholder's properties are
bound, or the charter documents or by-laws of such Selling Stockholder
or, if applicable, any of its subsidiaries, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to such Selling Stockholder or, if applicable, any of its
subsidiaries.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company, the Selling Stockholders and public
officials.
(e) The Representative shall have received an opinion, dated
the Firm Closing Date, of Shearman & Sterling, counsel for the Underwriters,
with respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representative may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
26
27
(f) The Representative shall have received from KPMG LLP a
letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance reasonably satisfactory to the Representative, to
the effect that:
(i) they are independent accountants with respect to the
Company and its consolidated subsidiaries within the meaning of the Act
and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules and pro forma financial statements examined by
them and included in the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(iii) on the basis of a reading of the latest available
interim unaudited consolidated condensed financial statements of the
Company and its consolidated subsidiaries, carrying out certain
specified procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information as
described in Statement of Auditing Standards No. 71, Interim Financial
Information (which do not constitute an examination made in accordance
with generally accepted auditing standards) that would not necessarily
reveal matters of significance with respect to the comments set forth
in this paragraph (iii), a reading of the minute books of the
stockholders, the board of directors and any committees thereof of the
Company and each of its consolidated subsidiaries, and inquiries of
certain officials of the Company and its consolidated subsidiaries who
have responsibility for financial and accounting matters, nothing came
to their attention that caused them to believe that:
(A) the unaudited consolidated condensed financial
statements of the Company and its consolidated
subsidiaries included in the Registration Statement and
the Prospectus do not comply in form in all material
respects with the applicable accounting requirements of
the Act and the related published rules and regulations
thereunder or are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements included in the
Registration Statement and the Prospectus; and
(B) at a specific date not more than five business days
prior to the date of such letter, there were any change
in the common stock, increase in long-term debt or
decreases in consolidated net current assets or
stockholders' equity of the Company and its consolidated
subsidiaries, as compared with amounts shown on the
March 31, 1999 unaudited consolidated balance sheet
included in the Registration Statement and the
Prospectus, or for the period from April, 1, 1999 to
such specified date there were any decreases, as
compared with the corresponding period in the preceding
year, in consolidated net broadcasting
27
28
revenue or decreases in net income or increases in net
loss, except in all instances for changes, decreases or
increases set forth in such letter;
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting
records of the Company and its consolidated subsidiaries and are
included in the Registration Statement and the Prospectus under the
captions "Prospectus Summary," "Risk Factors," "Use of Proceeds,"
"Capitalization," "Recently Completed and Pending Transactions,"
"Unaudited Pro Forma Condensed Consolidated Financial Statements,"
"Selected Historical Financial Data," "Management's Discussion and
Analysis of Financial Condition and Results of Operations," "Business,"
"Pending Transactions," "Management," "Certain Transactions,"
"Description of Certain Indebtedness" and "Principal and Selling
Stockholders" and have compared such amounts, percentages and financial
information with such records of the Company and its consolidated
subsidiaries and with information derived from such records and have
found them to be in agreement, excluding any questions of legal
interpretation; and
(v) on the basis of a reading of the unaudited pro forma
consolidated condensed financial statements included in the
Registration Statement and the Prospectus, carrying out certain
specified procedures that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(v), inquiries of certain officials of the Company and its consolidated
subsidiaries who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the unaudited pro
forma consolidated condensed financial statements, nothing came to
their attention that caused them to believe that the unaudited pro
forma consolidated condensed financial statements do not comply in form
in all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of
such statements.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representative deems such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representative, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in
this paragraph (f), with respect to either letter referred to above shall
include any amendment or supplement thereto at the date of such letter.
28
29
(g) The Representative shall have received a certificate,
dated the Firm Closing Date, of the chief executive officer and the principal
financial officer of the Company to the effect that:
(i) the representations and warranties of the Company in
this Agreement are true and correct as if made on and as of the Firm
Closing Date; the Registration Statement, as amended as of the Firm
Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented
as of the Firm Closing Date, does not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, provided that the immediately
preceding statement does not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or any amendment
thereto or the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representative specifically
for use therein and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or, to the best of
the Company's knowledge, are threatened or contemplated by the
Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has not been any Material
Adverse Effect, except in each case as described in or contemplated by
the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Representative shall have received a certificate
from each Selling Stockholder, dated the Closing Date, to the effect that:
(i) the representations and warranties of such Selling
Stockholder in this Agreement are true and correct as if made on and as
of the Closing Date;
(ii) to the extent that any statements or omissions are made
in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by such
Selling Stockholder specifically for use therein, the Registration
Statement, as amended as of the Closing Date, does not include any
untrue statement of a
29
30
material fact or omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented as of the Closing Date, does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(iii) such Selling Stockholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior to the
Closing Date.
(i) The Representative shall have received from persons who
own in the aggregate approximately [_________] shares of Common Stock, including
the executive officers and directors of the Company, agreement to the effect
that such persons will not, directly or indirectly, without the prior written
consent of Credit Suisse First Boston Corporation, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant of an option to purchase or other
sale or disposition) of any shares of Common Stock or any securities convertible
into, or exchangeable or exercisable for, shares of Common Stock for a period of
90 days after the date of this Agreement, other than (i) as a gift or gifts,
provided the donee or donees thereof agree in writing to be bound by this
paragraph (i) or (ii) transfers to a transferor's affiliate, as such term is
defined in Rule 405 promulgated under the Act, provided the transferee or
transferees thereof agree in writing to be bound by this paragraph (i).
(j) On or before the Firm Closing Date, the Representative and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company and the Selling Stockholders.
(k) Prior to the commencement of the offering of the
Securities, the Securities shall have been included for trading on the Nasdaq
National Market.
(l) The issuance and sale of the Company Firm Securities and
the consummation of the transactions by the Company contemplated hereby shall
not be enjoined (temporarily or permanently) and no restraining order or other
injunctive order shall have been issued or any action, suit or proceeding shall
have been commenced with respect to this Agreement or any transaction
contemplated hereby, before any court or governmental authority (including,
without limitation, the FCC or Department of Justice).
(m) The Company shall have furnished to the Underwriters an
amendment to the Credit Facility, the effect of which is to allow for the
application of the net proceeds to the Company to redeem Citadel Broadcasting's
preferred stock.
All opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory in all material respects to the Representative and
counsel for the Underwriters. The Company and the Selling Stockholders
30
31
shall furnish to the Representative such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Representative and
counsel for the Underwriters shall reasonably request.
The respective obligations of the several Underwriters to
purchase and pay for any Option Securities shall be subject, in their
discretion, to each of the foregoing conditions to purchase the Firm Securities,
except that all references to the Firm Securities and the Firm Closing Date
shall be deemed to refer to such Option Securities and the related Option
Closing Date, respectively.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Securities Exchange Act of 1934 (the "Exchange Act"), against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange
(each an "Application") or
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; 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 any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written Information furnished to the Company by such Underwriter
through the Representative
31
32
specifically for use therein; and provided, further, that with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Underwriter under the Act in
connection with such purchase and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the Prospectus if the Company had previously furnished
copies thereof to such Underwriter. The Company will not, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such (i) settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(b) Each Selling Stockholder severally and not jointly agrees
to indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, each Underwriter and each person
who controls the Company or any Underwriter within the meaning of the Act or the
Exchange Act against any losses, claims, damages or liabilities to which the
Company, any such director, officer, such Underwriter or any such controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions 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 or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application or (ii) the omission or the alleged
omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or any Application or
necessary to make the statements therein not misleading, in each case to the
extent but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Selling
Stockholder for use therein; provided, however, that such Selling Stockholder
will not be liable to any Underwriter or any person controlling such Underwriter
with respect to any such untrue statement or omission made in any Preliminary
Prospectus that is corrected in the Prospectus (or any amendment or supplement
thereto) if the person asserting any such loss, claim, damage or liability
purchased Securities from such Underwriter but was not sent or given a copy of
the Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act, unless such failure to deliver the Prospectus (as amended or supplemented)
was a result of noncompliance by the Company with Section 6(d) and (e) of this
Agreement; and, subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by the Company, any such director, officer such Underwriter or any such
controlling person in connection
32
33
with investigating or defending any such loss, claim, damage, liability or any
action in respect thereof. This indemnity agreement will be in addition to any
liability which any Selling Stockholder may otherwise have. Each Selling
Stockholder will not, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such (i) settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party. The liability of a Selling
Stockholder under this Section 9(b) shall not exceed an amount equal to the
initial public offering price (less underwriting discounts and commissions) of
the Securities sold by such Selling Stockholder to the Underwriters.
(c) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, each Selling Stockholder and
each person, if any, who controls the Company or such Selling Stockholder within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which the Company, any such
director or officer of the Company, such Selling Stockholder or any such
controlling person of the Company or such Selling Stockholder may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions 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 or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or any Application or (ii) the omission or the alleged omission to state therein
a material fact required to be stated in the Registration Statement or, any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representative
specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company, any such director, officer or
controlling person or such Selling Stockholder in connection with investigating
or defending any such loss, claim, damage, liability or any action in respect
thereof. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have. The Underwriters will not, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such (i) settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to
33
34
be made against the indemnifying party under this Section 9, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section 9. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that (based upon advice or opinion of counsel) there
may be one or more legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnifying party shall not have the right to direct
the defense of such action on behalf of such indemnified party or parties and
such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 9 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representative in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are parties to
such action or actions) or (ii) the indemnifying party does not promptly retain
counsel reasonably satisfactory to the indemnified party or (iii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(e) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that
34
35
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or the Underwriters, the parties' relative
intents, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Company, the Selling Stockholders and the Underwriters
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (e). Notwithstanding any other provision of this paragraph
(e), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the total public offering price of the Securities purchased
by such Underwriter under this Agreement, less the aggregate amount of any
damages that such Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim, and 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. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Credit Suisse First Boston Corporation's Master Agreement Among
Underwriters. For purposes of this paragraph (e), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, shall have the same rights to contribution as
the Company or such Selling Stockholder, as the case may be; provided that the
liability of a Selling Stockholder under this Section 9 shall not exceed an
amount equal to the initial public offering price (less underwriting discounts
and commissions) of the Securities sold by such Selling Stockholder to the
Underwriters.
10. Default of Underwriters. If one or more Underwriters
default in their obligations to purchase Firm Securities or Option Securities
hereunder and the aggregate number of such Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase is ten percent or less
of the aggregate number of Firm Securities or Option Securities to be purchased
by all of the Underwriters at such time hereunder, the other Underwriters may
make arrangements satisfactory to the Representative for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representative), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments
35
36
hereunder to purchase the Firm Securities or Option Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase. If one or
more Underwriters so default with respect to an aggregate number of Securities
that is more than ten percent of the aggregate number of Firm Securities or
Option Securities, as the case may be, to be purchased by all of the
Underwriters at such time hereunder, and if arrangements satisfactory to the
Representative are not made within 36 hours after such default for the purchase
by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representative) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 11 hereof. In the event of any default by one or more Underwriters as
described in this Section 10, the Representative shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be
established as provided in Section 4 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
11. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers, the Selling Stockholders and the several Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, the Selling Stockholders, any Underwriter or any controlling person
referred to in Section 9 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 7 and 9 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
12. Termination. (a) This Agreement may be terminated with
respect to the Firm Securities or any Option Securities in the sole discretion
of the Representative by notice to the Company and the Selling Stockholders
given prior to the Firm Closing Date or the related Option Closing Date,
respectively, in the event that the Company or the Selling Stockholders shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company or any of its subsidiaries shall have, in the
sole judgment of the Representative, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any Material Adverse Effect
(including without limitation a change in management or control of the
Company), except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto);
36
37
(ii) trading in the Common Stock shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities
generally on the New York Stock Exchange or Nasdaq National Market
shall have been suspended or minimum or maximum prices shall have been
established on either such exchange or market system;
(iii) a banking moratorium shall have been declared by New
York or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the U.S. financial markets that, in the
sole judgment of the Representative, makes it impractical or
inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement, as amended as
of the date hereof.
(b) Termination of this Agreement pursuant to this Section 12
shall be without liability of any party to any other party except as provided in
Section 11 hereof.
13. Information Supplied by Underwriters. The statements set
forth in the fourth, ninth and tenth paragraphs under the heading "Underwriting"
in any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representative to the Company for the purposes of
Sections 2(b) and 9 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
14. Notices. All communications hereunder shall be in writing
and, if sent to any of the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to c/o Credit Suisse
First Boston Corporation, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Investment Banking Department - Transactions Advisory Group, with
copies to: Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxxxxxx Xxxxxxx; if sent to the Company, shall be delivered or sent
by mail, telex or facsimile transmission and confirmed in writing to the Company
at City Center West, 0000 Xxxx Xxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000, attention: Xxxxx X. Xxxxxxx, with copies to: Xxxxxx Xxxxxxx Xxxxxx &
Xxxxxxx, LLC, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
attention: Xxxxx X. Xxxxxxxxxxx; and if sent to the Selling Stockholders, shall
be delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to: Xxxxx, Xxxxxxxx & Company, x/x Xxxxxx & Xxxxxxx, Xxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, attention: Xxxx X. Xxxxxxx, Esq.; Xxx X. Xxxxxx,
Xx., c/o Friday, Xxxxxxxx & Xxxxx, 2000 First Commercial Bldg., 000 X. Xxxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000-0000, attention: Price Xxxxxxx, Esq.; Rio Bravo
Enterprise Associates, L.P., c/o Xxxxxxxx X. Xxxxxx, Citadel Communications
Corporation, City Center West, 0000 Xxxx Xxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxx 00000; Endeavour Capital Fund Limited Partnership and DVS
Management, Inc., c/o Stoel Rives LLP, 000 Xxxxx Xxxxxx, Xxxxx
00
38
2300, attention: Xxxxxx Xxxx, Esq.; Xxxxx Xxxx, Trustee of the Xxxxxx X. Xxxx
and Xxxxxxxx Xxxx Nominee Trust dated November 17, 1997, 00 Xxxxxxxxxxx Xx.,
Xxxxxxxx, Xxxxx Xxxxxx 00000; ABRY Broadcast Partners II, L.P. and ABRY Capital,
L.P., c/o Kirkland & Xxxxx, 000 X. Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
attention: Xxxxxx Xxxxxxx; Xxxxxx X. Xxxxx, c/o Xxxxx Xxxx, Esq., 0000 X.X.
Xxxxx Xxxxxx #0000, Xxxxxxxx, Xxxxxx 00000; The Xxxxxxxxx Family Trust U/A/D/
2-15-94, x/x Xxxxxx Xxxx XXX, 0000 Pioneer Tower, 000 X.X. Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx 00000, attention: Xxxx Xxxxxxxxx, Esq.; and if to Xxxxx X.
Xxxxxxx, D. Xxxxxx Xxxxxxxx, Xxxxxx X. Xxxxxx, to the Company at the
aforementioned address, attention: Xxxxx X. Xxxxxxx.
15. Successors. This Agreement shall inure to the benefit of
and shall be binding upon the several Underwriters, the Company and the Selling
Stockholders and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person except that (i) the indemnities of the Company and the Selling
Stockholders contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Underwriters contained in Section 9 of this Agreement shall
also be for the benefit of the directors of the Company, the officers of the
Company who have signed the Registration Statement, the Selling Stockholders and
any person or persons who control the Company or the Selling Stockholders within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Securities from any Underwriter shall be deemed a successor because
of such purchase.
16. Applicable Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
17. Counterparts. 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.
38
39
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute an agreement binding the
Company, the Selling Stockholders and each of the several Underwriters.
Very truly yours,
CITADEL COMMUNICATIONS CORPORATION
By:
---------------------------------
Name:
Title:
SELLING STOCKHOLDERS
By:
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
For himself and as Authorized Signatory for
each of the Selling Stockholders named herein
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By
-------------------------------------
Name:
Title:
For itself and as Representative of
the Underwriters named herein
39
40
SCHEDULE 1
UNDERWRITERS
--------------------------------------------------------------- --------------
Number of Firm
Underwriter Securities to
Be Purchased
Credit Suisse First Boston Corporation.........................
Prudential Securities Incorporated.............................
Xxxxxxx Xxxxx Barney Inc.......................................
Bear, Xxxxxxx & Co. Inc........................................
BT Alex. Xxxxx Incorporated....................................
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation............
Xxxxxxx, Sachs & Co............................................
Xxxxxx Brothers Inc............................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.............
First Union Capital Markets Corp...............................
Xxxxxx Xxxxxx Partners LLC.....................................
BancBoston Xxxxxxxxx Xxxxxxxx..................................
==========
Total.......................................................... 10,000,000
41
SCHEDULE 2
Number of Firm
Securities Offered
------------------
Citadel Communications Corporation 5,000,000
SELLING STOCKHOLDERS
----------------------------------------------------------------------------------------------------------------
Number of Firm Number of Option Securities
Name Securities Offered to be Offered
ABRY Broadcast Partners II, L.P......................... 3,543,842 1,041,962
Xxxxx, Xxxxxxxx & Company............................... 759,385 223,275
Rio Bravo Enterprise Associates, L.P.................... 300,000 150,000
Xxxxxx X. Xxxx and Xxxxxxxx Xxxx........................
Nominee Trust dated November 17, 1997................. 137,722 40,493
Xxx X. Xxxxxx, Xx. ..................................... 95,000 --
DVS Management Inc...................................... 94,034 27,648
Xxxxx X. Xxxxxxx........................................ 15,000 5,000
D. Xxxxxx Xxxxxxxx...................................... 15,000 5,000
Xxxxxx X. Xxxxxx........................................ 15,000 5,000
Xxxxxx X. Xxxxx......................................... 12,000 --
The Xxxxxxxxx Family Trust U/A/D 2-15-94................ 7,500 --
ABRY Capital, L.P....................................... 3,183 936
Endeavour Capital Fund Limited Partnership.............. 2,334 686
Total................................................... 5,000,000 1,500,000
========= =========
