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Exhibit 1.1
CITADEL COMMUNICATIONS CORPORATION
4,750,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
February 8, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the several Underwriters
c/o Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
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 4,750,000 shares (the "Firm Securities") of the Company's Common
Stock, par value $.001 per share ("Common Stock") and the Selling Stockholders
propose to sell to the several Underwriters not more than 500,000 additional
shares of Common Stock 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 as the "Option
Securities," and
- --------
(1) Plus an option to purchase from the Selling Stockholders an aggregate
of up to 500,000 additional shares to cover over-allotments.
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the Firm Securities and any Option Securities are collectively referred to
herein as the "Securities."
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-92593), relating to equity securities, debt securities and trust preferred
securities, including the Firm Securities, and the offering thereof from time to
time in accordance with Rule 415 of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"). The Registration Statement includes two base prospectuses, one of which
relates to common stock and preferred stock of the Company which, as
supplemented from time to time, will be used in connection with certain
offerings of common stock and preferred stock of the Company. "Registration
Statement" means, with respect to any date or time referred to in this
Agreement, the most recently amended Registration Statement. A prospectus
supplement or supplements, reflecting the terms of the Firm Securities, the
terms of the offering thereof and other matters relating to the Firm Securities
has been prepared and has been or will be filed together with the base
prospectus referred to below pursuant to Rule 424 under the Securities Act (such
prospectus supplement, in the form first filed on or after the date hereof
pursuant to Rule 424, is herein referred to as the "Prospectus Supplement"). The
base prospectus included in the Registration Statement and relating to certain
offerings of common stock and preferred stock of the Company under the
Registration Statement, as supplemented by the Prospectus Supplement, is herein
called the "Prospectus", except that, if such base prospectus is amended on or
prior to the date on which the Prospectus Supplement is first filed pursuant to
Rule 424, the term "Prospectus" shall refer to such base prospectus as most
recently so amended and as supplemented by the Prospectus Supplement, as the
case may be, in either case including the documents filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference therein. Any reference
herein to the terms "amendment" or "supplement" with respect to the Registration
Statement, to the Prospectus, any Prospectus Supplement shall be deemed to refer
to and include any documents filed with the Commission under the Exchange Act
after the date thereof, the date the Prospectus is filed with the Commission, or
the date of such Prospectus Supplement, as the case may be, and incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Securities Act.
2. Representations and Warranties of the Company. The Company
and Lawrence R. Wilson represent and warrant to, and agree with, each of the
several Underwriters that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act; the Registration Statement has become effective; the
Commission has not issued any order preventing or suspending use of any
Prospectus or Prospectus Supplement.
(b) 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,
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the Act 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 was filed with the Commission 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 (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. When the Prospectus Supplement that is a part thereof or any
amendment or supplement to the Prospectus is filed with the Commission pursuant
to Rule 424(b) and on the Firm Closing Date and any Option Closing Date (both as
hereinafter defined), the Prospectus Supplement, 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 (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 (a) do not apply to statements or omissions made in
the Registration Statement or any amendment thereto, 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.
(c) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act.
(d) The Company and its subsidiary 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 subsidiary, taken as a
whole (a "Material Adverse Effect").
(e) The Company and its subsidiary have full power (corporate
and other) to own or lease their respective properties and conduct their
respective businesses as disclosed in the Registration Statement and the
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 the Company's
subsidiary have been
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duly authorized and validly issued, are fully paid and nonassessable and, except
as otherwise disclosed in the 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 disclosed in the Prospectus as of the dates of such
disclosure. 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
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.
(h) The capital stock of the Company conforms to the
description thereof contained in the Prospectus.
(i) Except as disclosed in the Prospectus, there are no
outstanding (A) securities or obligations of the Company or its subsidiary
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 financial statements, together with the related notes,
filed as part of, or incorporated by reference in, the Registration Statement
and the 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 Supplement fairly present, on the basis stated
in the Prospectus Supplement, the information included therein.
(k) The pro forma condensed consolidated financial statements
and other pro
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forma financial information (including the notes thereto) filed as part of, or
incorporated by reference in, the Registration Statement and the 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 filed as a part of or incorporated by
reference in the Registration Statement and the 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, incorporated by reference in the Registration Statement and
the 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 Fuller-Jeffrey
Broadcasting Companies, Inc. and its consolidated subsidiaries ("Fuller"),
together with the related notes, incorporated by reference in the Registration
Statement and the Prospectus fairly present the financial position of Fuller 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) The consolidated financial statements of Citywide
Communications, Inc. and its consolidated subsidiaries ("Citywide"), together
with the related notes, incorporated by reference in the Registration Statement
and the Prospectus fairly present the financial position of Citywide 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).
(o) The financial statements of Wicks Radio Group ("Wicks"), a
division of Wicks Broadcast Group Limited Partnership, together with the related
notes, incorporated by reference in the Registration Statement and the
Prospectus fairly present the financial position of Wicks 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
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otherwise noted therein).
(p) The combined financial statements of Broadcasting Partners
Holdings Radio Group ("Broadcasting Partners"), together with the related notes,
incorporated by reference in the Registration Statement and the Prospectus
fairly present the financial position of Broadcasting Partners 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).
(q) The combined financial statements of Liggett Broadcast,
Inc. ("Liggett"), together with the related notes, incorporated by reference in
the Registration Statement and the Prospectus fairly present the financial
position of Liggett 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).
(r) The consolidated financial statements of Caribou
Communications Co. and its consolidated subsidiaries ("Caribou"), together with
the related notes, incorporated by reference in the Registration Statement and
the Prospectus fairly present the financial position of Caribou 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).
(s) The consolidated financial statements of Bloomington
Broadcasting Holdings, Inc. and its consolidated subsidiaries ("Bloomington"),
together with the related notes, incorporated by reference in the Registration
Statement and the Prospectus fairly present the financial position of
Bloomington 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).
(t) KPMG LLP, who have certified certain financial statements
of: (i) the Company and its consolidated subsidiaries, (ii) Fuller, (iii) Wicks
and (iv) Broadcasting Partners and have delivered their report with respect to
the audited financial statements incorporated by reference in the Registration
Statement and the Prospectus for each of the Company and each of the entities
described in this subsection (s), are independent public accountants as required
by the Act.
(u) 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 of Tele-Media, are
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independent public accountants as required by the Act.
(v) Andrews Hooper & Pavlik P.L.C., who have certified certain
financial statements of Liggett and delivered their report with respect to the
audited consolidated financial statements incorporated by reference in the
Registration Statement and the Prospectus of Liggett, are independent public
accountants as required by the Act.
(w) Cole & Reed, P.C., who have certified certain financial
statements of Caribou Communications and delivered their report with respect to
the audited consolidated financial statements incorporated by reference in the
Registration Statement and the Prospectus of Caribou Communications, are
independent public accountants as required by the Act.
(x) Faulk & Winkler LLC, who have certified certain financial
statements of Citywide and delivered their report with respect to the audited
consolidated financial statements incorporated by reference in the Registration
Statement and the Prospectus of Citywide, are independent public accountants as
required by the Act.
(y) Dunbar, Breitweiser & Company, LLP, who have certified
certain financial statements of Bloomington and delivered their report with
respect to the audited consolidated financial statements incorporated by
reference in the Registration Statement and the Prospectus of Bloomington, are
independent public accountants as required by the Act.
(z) 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.
(aa) No legal or governmental proceedings are pending to which
the Company or its subsidiary is a party or to which the property of the Company
or its subsidiary is subject that are required to be disclosed in the
Registration Statement or the Prospectus and are not disclosed therein, and,
except as disclosed in the Registration Statement or the Prospectus, no such
proceedings have, to the knowledge of the Company, been threatened against the
Company or its subsidiary or with respect to any of their respective properties;
and no contract or other document is required to be disclosed in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not disclosed therein or filed as required.
(bb) The issuance, offering and sale of the Firm 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 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
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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 its subsidiary is a party or by which the Company or its
subsidiary or any of their respective properties are bound, or the charter
documents (including any certificate of designations) or by-laws of the Company
or its subsidiary, 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 its subsidiary. In addition, except as disclosed in
the Registration Statement and except for such consents, approvals or
authorizations as are required by the FCC, (i) no consent, approval,
authorization or order of any court or governmental agency or body 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 (ii) 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.
(cc) 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 its subsidiary is a party or by
which the Company or its subsidiary or any of their respective properties is
bound or may be affected in any manner that would result in a Material Adverse
Effect.
(dd) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, neither
the Company nor its subsidiary 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 disclosed in or contemplated by
the Prospectus.
(ee) 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.
(ff) 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, the Prospectus or any amendment or supplement thereto, or
other materials, if any permitted by the Act.
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(gg) Except as disclosed in the Prospectus, the Company and
its subsidiary 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 disclosed in the
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 "Our Pending Transactions
and Station Portfolio" in the Prospectus Supplement under the caption
"Business," exclusive of all such stations which are the subject of pending
acquisitions, (collectively, the "Existing Stations") in the manner and to the
full extent now operated or proposed to be operated as disclosed in the
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; with respect to stations which
are the subject of pending acquisitions, the Company, after due inquiry, is not
aware of these stations, individually or in the aggregate, not to be in
compliance with the Communications Act or the Telecommunications Act of 1996
such that it would result in a Material Adverse Effect when acquired by the
Company; 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 subsidiary therein; the Company and its subsidiary
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 subsidiary
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 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.
(hh) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, (1) the
Company and its subsidiary 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
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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 subsidiary,
considered as one enterprise, whether or not arising in the ordinary course of
business, except in each case as disclosed in or contemplated by the Prospectus.
(ii) The Company and its subsidiary 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 disclosed in or
contemplated by the Prospectus.
(jj) To the best knowledge of the Company, no labor problem
exists with the employees of the Company or its subsidiary or is threatened or
imminent that could result in a Material Adverse Effect, except as disclosed in
or contemplated by the Prospectus.
(kk) The Company and its subsidiary 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 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 disclosed in or
contemplated by the Prospectus.
(ll) 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.
(mm) 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
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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 disclosed in or contemplated by the 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.
(nn) The statistical and market-related data included in the
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.
(oo) Except for the shares of capital stock of the subsidiary
owned by the Company, and except for (i) 8,499 shares of capital stock of
Lamont's Apparel, Inc., (ii) 31 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 its subsidiary,
neither the Company nor its 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 disclosed in or contemplated
by the Prospectus.
(pp) Except as disclosed in the Prospectus or except as would
not individually or in the aggregate have a Material Adverse Effect, (A) the
Company and its subsidiary are each in compliance with all applicable
Environmental Laws, (B) the Company and its subsidiary have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are in compliance with their requirements, (C) there are no pending or, to
the knowledge of the Company, threatened Environmental Claims against the
Company or its subsidiary, and (D) there are no circumstances with respect to
any property or operations of the Company or its subsidiary that could
reasonably be anticipated to form the basis of an Environmental Claim against
the Company or its subsidiary.
(qq) 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.
(rr) No subsidiary of the Company is currently prohibited,
directly or
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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 disclosed in or contemplated by the
Prospectus.
(ss) The Company and its subsidiary 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.
(tt) 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.
(uu) Neither the Company nor its subsidiary, nor any director,
officer, agent, employee or other person associated with or acting on behalf of
the Company or its subsidiary, 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.
(vv) 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.
(ww) 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.
13
(xx) All disclosure regarding year 2000 compliance that is
required to be described in a registration statement on Form S-3 under the Act
(including disclosures required by Staff Legal Bulletin No. 6, SEC Release No.
33-7558 (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 subsidiary (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, that the suppliers, vendors,
customers or other material third parties used or served by the Company and its
subsidiary 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 Option Securities which may 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
Letter of Transmittal and Custody Agreement and a Selling Stockholder's
Irrevocable Power of Attorney (with respect to such Selling Stockholder, the
"Custody Agreement" and the "Power-of-Attorney," respectively), each in the form
heretofore delivered to the Representative; each of the Selling Stockholders
have appointed Lawrence R. Wilson 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 for all
of the Option Securities which may be sold by the Selling Stockholders pursuant
to this Agreement in suitable form for transfer by delivery or accompanied by
duly executed instruments of transfer or assignment in blank with signatures
appropriately guaranteed, have been deposited with the Custodian pursuant to the
Custody Agreement with irrevocable conditional instructions to deliver such
Option Securities to the Underwriters pursuant to this Agreement.
(c) 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
14
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
Option 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 undersigned or the Attorney-in-Fact to execute and
deliver this Agreement, to agree on the price at which the Option 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 such event should occur, before the
delivery of such Option Securities hereunder, the certificates for such Option
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 such event
had not occurred, regardless of whether or not the Custodian or, if applicable,
the Attorney-in-Fact shall have received notice thereof.
(d) The Option Securities which may 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 on the
Option Closing Date, will have, full right, power and authority to hold, sell,
transfer and deliver the Option Securities to be sold by such Selling
Stockholder pursuant to this Agreement; and upon the Underwriters' acquiring
possession of such Option Securities and paying the purchase price therefor as
herein contemplated, the Underwriters will acquire their respective interests in
such Option Securities (including, without limitation, all rights that such
Selling Stockholder had or has the power to transfer in such Option Securities)
free of any adverse claim.
(e) 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
15
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).
(f) 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, the Prospectus or the Prospectus Supplement or any amendment
or supplement thereto, or other materials, if any, permitted by the Act.
(g) In order to document the Custodian's 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 the Custodian prior to or on the Option 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).
(h) To the extent that any statements or omissions are made in
the Registration Statement, 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
Prospectus did conform, and the Registration Statement and the Prospectus and
any amendments or supplements thereto, including the Prospectus Supplement 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 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 and the Prospectus
Supplement and the Registration Statement, and the information regarding such
Selling Stockholder set forth therein under the caption "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.
(i) The sale by such Selling Stockholder of Option Securities
pursuant hereto is not prompted by any material adverse information concerning
the Company that has not been publicly disclosed.
(j) The sale of the Option Securities to the Underwriters by
such Selling Stockholder pursuant to this Agreement, the compliance by, if
applicable, 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
16
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 expressly 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
agrees to issue and sell to each of the Underwriters the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule 1 hereto,
and each of the Underwriters, severally and not jointly, agrees to purchase from
the Company the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule 1 hereto, at a purchase price of $49.44 (net of all
underwriting discounts and commissions) per share. 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 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 account of the Company. Such delivery of and payment for the Firm
Securities shall be made at the offices of Shearman & Sterling, 599 Lexington
Avenue, New York, New York 10022 at 9:30 A.M., New York time, on February 11,
2000, 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 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 Stockholders hereby grant to the several
Underwriters an option to purchase the Option Securities. 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 Supplement (or, if such 30th day shall be a Saturday or Sunday
or a holiday, on the next business day thereafter when the New
17
York Stock Exchange is open for trading), it being agreed that the certificates
representing any and all Option Securities in respect of which the Underwriters
have not exercised such option in a timely manner in accordance with this
sentence shall be returned by the Custodian to the respective Selling
Stockholders. 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 reasonably promptly 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. The maximum number of Option Securities to be sold by each Selling
Stockholder is set forth opposite such Selling Stockholder's name on Schedule 2
hereto. If the option is exercised as to a portion rather than to all of the
Option Securities, the respective number of Option Securities to be sold by each
of the Selling Stockholders shall be determined on a pro rata basis by reference
to the percentage that the number of Option Securities opposite such Selling
Stockholder's name on Schedule 2 hereto bears to the total number of Option
Securities. 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) On the Firm Closing Date or the Option Closing Date, as
the case may be, the Underwriters shall deliver a receipt to the Company for the
Securities they received.
(d) It is understood that any of you, individually and not as
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.
18
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 Supplement.
6. Covenants of the Company and of the Selling Stockholders.
The Company (with respect only to paragraphs 6(a) through 6(k) below) and each
Selling Stockholder (with respect only to paragraphs 6(l) and 6(m) below)
covenant and agree with each of the Underwriters that:
(a) If required, the Company will file the Prospectus
Supplement and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rule 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 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, any amendment or supplement to such
prospectus, 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 its
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 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 Registration
Statement or any order preventing or suspending the use of the Prospectus or the
Prospectus Supplement, (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 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
19
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, 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), 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 and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of the Prospectus or Prospectus Supplement 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 12:00 noon, New York City time, on February 9, 2000, 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 subsidiary 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.
20
(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, (iii) for issuance of up to 200,000 shares of
Common Stock in connection with the acquisition of assets of Liggett by the
Company's subsidiary and (iv) for grants of up to 300,000 stock options under
the Company's 1996 Equity 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) 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.
(l) Such 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 shares of Common Stock legally or beneficially owned by such Selling
Stockholder or any securities convertible into, or exchangeable or exercisable
for Common Stock, enter into a transaction which would have the same effect, or
enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of Common Stock, 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).
21
(m) 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 respect to the Securities and any amendment thereto, the
Prospectus, 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' costs and expenses in connection with the offering and this
Agreement shall be borne as provided in the Third Amended and Restated
Registration Rights Agreement dated as of June 28, 1996.
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
22
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) No stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Act and no proceedings
therefor shall have been instituted or threatened by the Commission.
(b) The Representative shall have received an opinion, dated
the Firm Closing Date, of Eckert Seamans Cherin & Mellott, LLC, counsel for the
Company, to the effect that:
(i) the Company and its subsidiary 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 its subsidiary have corporate power to
own, or lease their respective properties and conduct their respective
businesses as disclosed 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 the subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable and, except as disclosed 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 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
23
duly included for trading on the Nasdaq National Market; 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 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 heading "Description of
the Citadel Communications Common Stock" 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," "Business--Our Pending Transactions and
Station Portfolio," "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Selling Stockholders" in the
Prospectus Supplement, 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 its subsidiary is a party or to which the property
of the Company or its subsidiary is subject that are required to be
disclosed in the Registration Statement or the Prospectus and are not
disclosed therein, and, to the best knowledge of such counsel, no such
proceedings have been threatened against the Company or its subsidiary
or with respect to any of their respective properties and (B) no
contract or other document is required to be disclosed in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement that is not disclosed therein or filed as
required;
(viii) the issuance, offering and sale of the Firm Securities
to the Underwriters by the Company pursuant to this Agreement, the
application of the net proceeds from the sale of the 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 (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 its subsidiary is a party or by which the Company or its
subsidiary or any of their respective properties are bound, or the
charter documents (including any certificate
24
of designations) or by-laws of the Company or its subsidiary, 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 its subsidiary;
(ix) the Registration Statement is effective under the Act;
any required filing of the Prospectus, pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 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 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;
(xi) the Company is not, and, after giving effect to the
offering and sale of the Firm Securities and the application of the
proceeds thereof as disclosed 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 any Firm Securities
delivered in certificated form 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 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
25
extent reasonably satisfactory in form and scope to counsel for the
Underwriters, upon the opinion of Lionel, Sawyer & Collins 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 Reed Smith
Shaw & McClay, 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, Sawyer & Collins, and copies
of such opinion shall be delivered to the Representative and to Shearman &
Sterling.
(c) The Representative shall have received an opinion, dated
the Firm Closing Date, of (i) Reed Smith Shaw & McClay, 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 listed in Schedule 2 hereto shall
have furnished to the Representative the opinion of such Selling Stockholder's
counsel set forth opposite their respective names, dated 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 Option
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 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 Option Securities pursuant
to this Agreement. Assuming that (i) the Option 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 Option 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
Option Securities, then, upon the Underwriters' acquiring
26
possession of such certificate or certificates for the Option
Securities and paying the purchase price therefor pursuant to this
Agreement, each Underwriter will be a "protected purchaser" of the
Option Securities to be purchased by it (within the meaning of Section
8-303 of the UCC) and will acquire its interest in such Option
Securities (including, without limitation, all rights that such Selling
Stockholder had or has the power to transfer in such Option Securities)
free of any adverse claim;
(iii) the sale of the Option 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.
(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;
(ii) in their opinion, the audited consolidated financial
statements and
27
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;
(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 its 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 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 three 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 September 30, 1999 unaudited
consolidated balance sheet included in the
Registration Statement and the Prospectus, or for the
period from October 1, 1999 to such specified date
there were any decreases, as compared with the
corresponding period in the preceding year, in
consolidated net broadcasting 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 "Summary," "Risk Factors," "Use of Proceeds,"
"Capitalization," "Selected
28
Historical Financial Data," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business--Our Pending
Transactions and Station Portfolio" 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.
(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 the
Prospectus, the Registration Statement or any amendment or supplement
thereto in reliance upon and in conformity with written information
furnished to the Company by
29
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,
there has not been any change, or development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiary
that will have a Material Adverse Effect.
(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, the Prospectus or Prospectus Supplement
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 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 pursuant to this
Agreement at or prior to the Closing Date.
(i) The Representative shall have received from persons who
own in the aggregate approximately 71,217 shares of Common Stock, including the
executive officers and directors of the Company who are not selling stockholders
(excluding Ted L. Snider, Sr.), a lock-up 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
30
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, or enter into a transaction which would have the same
effect, or enter into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequence or ownership 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) The Securities shall have been included for trading on the
Nasdaq National Market.
(l) The issuance and sale of the 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 Representative shall have received from Dunbar,
Breitweiser & Company, LLP with respect to Bloomington a letter or letters dated
the date hereof and the Firm Closing Date, in the form and substance reasonably
satisfactory to the Representative, substantially to the effect of clauses (i),
(ii) and (iii) of paragraph (f), and setting forth such other matters
customarily included in accountants' "comfort letters."
(n) The Representative shall have received from KPMG LLP with
respect to Fuller, Wicks and Broadcasting Partners a letter or letters dated,
respectively, the date hereof and the Firm Closing Date, in the form and
substance reasonably satisfactory to the Representative, substantially to the
effect of clauses (i), (ii) and (iii) of paragraph (f), and setting forth such
other matters customarily included in accountants' "comfort letters."
(o) The Representative shall have received from Andrews Hooper
& Pavlik P.L.C. with respect to Liggett a letter or letters dated, respectively,
the date hereof and the Firm Closing Date, in the form and substance reasonably
satisfactory to the Representative, substantially to the effect of clauses (i),
(ii) and (iii) of paragraph (f), and setting forth such other matters
customarily included in accountants' "comfort letters."
(p) The Representative shall have received from Cole & Reed,
P.C. with
31
respect to Caribou Communications a letter or letters dated, respectively, the
date hereof and the Firm Closing Date, in the form and substance reasonably
satisfactory to the Representative, substantially to the effect of clauses (i),
(ii) and (iii) of paragraph (f), and setting forth such other matters
customarily included in accountants' "comfort letters."
(q) The Representative shall have received from Faulkner &
Winkler LLC with respect to Citiwide a letter or letters dated, respectively,
the date hereof and the Firm Closing Date, in the form and substance reasonably
satisfactory to the Representative, substantially to the effect of clauses (i),
(ii) and (iii) of paragraph (f), and setting forth such other matters
customarily included in accountants' "comfort letters."
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 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, the Prospectus or the Prospectus Supplement 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
32
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, the Prospectus or the
Prospectus Supplement 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, the Prospectus or the Prospectus Supplement 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 specifically for use therein. 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, the Prospectus or the Prospectus Supplement 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, the Prospectus or the
Prospectus Supplement 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 and 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 with investigating or
defending any such loss, claim, damage, liability or any action in respect
thereof.
33
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 Option Securities sold by such
Selling Stockholder to the Underwriters.
(c) Lawrence R. Wilson agrees, severally and not jointly with
the Company, 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 of any
material fact contained in (A) the Registration Statement or any
amendment thereto, the Prospectus or the Prospectus Supplement 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
(ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, the Prospectus or the
Prospectus Supplement 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 Lawrence R. Wilson will not
be liable in any such case to the extent that any such loss, claim, damage or
liability (x) exceeds the aggregate amount of the gross proceeds received by
Lawrence R. Wilson in connection with the sale of Securities by him pursuant to
this Agreement or (y) 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, the Prospectus
34
or the Prospectus Supplement 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
specifically for use therein. Lawrence R. Wilson 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) 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, the
Prospectus, the Prospectus Supplement 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, the Prospectus, the Prospectus Supplement 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.
(e) 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 be made against the indemnifying party
under this Section 9, notify the
35
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.
(f) 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
36
alleged statements or omissions that 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, Selling
Stockholders and the Underwriters, as the case may be, shall be deemed to be in
the same proportion as the total proceeds from the offering (before deducting
expenses) received by the Company or the Selling Stockholders, as the case may
be, 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
37
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
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) there is any change, or any development or event involving
a prospective change in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiary
which, in the judgment of the majority in interest of the Underwriters
including the Representative, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of
38
the payment for the Securities;
(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, tenth and eleventh paragraphs under the heading
"Underwriting" in the Prospectus Supplement 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, 11 Madison Avenue, New York, New York 10010,
attention: Investment Banking Department - Transactions Advisory Group, with
copies to: Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022,
attention: Danielle Carbone; 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, 7201 West Lake Mead Boulevard, Suite 400, Las Vegas, Nevada
89128, attention: Donna L. Heffner, with copies to: Eckert Seamans Cherin &
Mellott, LLC, 600 Grant Street, 44th Floor, Pittsburgh, Pennsylvania 15219,
attention: Bryan D. Rosenberger; and if sent to the Selling Stockholders, shall
be delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to: Rio Bravo Enterprise Associates, L.P., c/o Lawrence R. Wilson,
Citadel Communications Corporation, City Center West, 7201 West Lake Mead
Boulevard, Suite 400,
39
Las Vegas, Nevada 89128; DVS Management, Inc., c/o Stoel Rives LLP, 900 Fifth
Avenue, Suite 2300, attention: Steven Hull, Esq.; and if to Donna L. Heffner, D.
Robert Proffitt, Stuart R. Stanek and Peter J. Benedetti, to the Company at the
aforementioned address, attention: Donna L. Heffner.
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.
40
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: Lawrence R. Wilson
Title: Chairman of the Board,
Chief Executive Officer
SELLING STOCKHOLDERS
By:
Name: Lawrence R. Wilson
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: Managing Director
For itself and as Representative of
the Underwriters named herein
41
SCHEDULE 1
UNDERWRITERS
Underwriter Number of Firm
Securities to
Be Purchased
Credit Suisse First Boston Corporation 712,500
Merrill Lynch, Pierce, Fenner & Smith Incorporated 593,750
Prudential Securities Incorporated 593,750
Salomon Smith Barney Inc. 593,750
Bank of America Securities LLC 225,625
Bear, Stearns & Co. Inc. 225,625
Deutsche Banc Alex. Brown 225,625
Donaldson, Lufkin & Jenrette Securities Corporation 225,625
First Union Capital Markets Corp. 225,625
FleetBoston Robertson Stephens Inc. 225,625
Goldman, Sachs & Co. 225,625
ING Barings LLC 225,625
Lazard Freres & Co. LLC 225,625
Thomas Weisel Partners LLC 225,625
---------
Total 4,750,000
=========
42
SCHEDULE 2
SELLING STOCKHOLDERS
Counsel Name Number of Option
Securities Offered
Stoel Rives LLP DVS Management, Inc 35,000
Eckert Seamans Cherin & Mellott, LLC Rio Bravo Enterprise Associates, L.P 342,000
Eckert Seamans Cherin & Mellott, LLC Peter J. Benedetti 3,000
Eckert Seamans Cherin & Mellott, LLC Donna L. Heffner 40,000
Eckert Seamans Cherin & Mellott, LLC D. Robert Proffitt 40,000
Eckert Seamans Cherin & Mellott, LLC Stuart R. Stanek 40,000
-------
Total 500,000
=======