EXHIBIT 1.1
10,000,000 Shares
CUMULUS MEDIA INC.
Class A Common Stock
($0.01 Par Value)
EQUITY UNDERWRITING AGREEMENT
May 16, 2002
Deutsche Bank Securities Inc.
Bear, Stearns & Co. Inc.
CIBC World Markets Corp.
Morgan Stanley & Co. Incorporated
Robertson Stephens, Inc.
SunTrust Capital Markets, Inc.
UBS Warburg LLC
Robert W. Baird & Co. Incorporated
Jefferies & Company, Inc.
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
One South Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
Cumulus Media Inc., an Illinois corporation (the "Company"), and
certain securityholders of the Company (the "Selling Shareholders") propose to
sell to the several underwriters (collectively, the "Underwriters") named in
Schedule I hereto for whom you are acting as representatives (collectively, the
"Representatives") an aggregate of 10,000,000 shares (the "Firm Shares") of the
Company's Class A Common Stock, $0.01 par value (the "Class A Common Stock"), of
which 9,169,448 shares will be sold by the Company and 830,552 shares will be
sold by the Selling Shareholders. The respective amounts of the Firm Shares to
be so purchased by the several Underwriters are set forth opposite their names
in Schedule I hereto, and the respective amounts to be sold by the Selling
Shareholders are set forth opposite their names in Schedule II hereto. The
Company and the Selling Shareholders are sometimes referred to herein
collectively as the "Sellers." The Company and one Selling Shareholder
also propose to sell at the Underwriters' option an aggregate of up to 1,500,000
additional shares of the Company's Class A Common Stock (the "Option Shares") as
set forth below. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."
As the Representatives, you have advised the Company and the Selling
Shareholders (a) that you are authorized to enter into this Equity Underwriting
Agreement (this "Agreement") on behalf of the several Underwriters, and (b) that
the several Underwriters are willing, acting severally and not jointly, to
purchase the numbers of Firm Shares set forth opposite their respective names in
Schedule I, plus their pro rata portion of the Option Shares if you elect to
exercise the over-allotment option in whole or in part for the accounts of the
several Underwriters.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each of the
Underwriters and each of the Selling Shareholders as follows:
(i) A registration statement on Form S-3 (File
No. 333-94323) with respect to the Shares has been prepared by the Company in
conformity in all material respects with the requirements of the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and has been filed with and declared effective by the Commission. The
Company and the transactions contemplated by this Agreement meet the
requirements and comply with the conditions for the use of Form S-3. Copies of
such registration statement, including any amendments thereto, the preliminary
prospectuses (meeting the requirements of the Rules and Regulations) contained
therein and the exhibits, financial statements and schedules, as finally amended
and revised, have heretofore been delivered by the Company to you. Such
registration statement, together with any registration statement filed by the
Company pursuant to Rule 462(b) of the Act, is herein referred to as the
"Registration Statement," which shall be deemed to include all information
omitted therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below, has become effective under the Act and no post-effective
amendment to the Registration Statement has been filed as of the date of this
Agreement. "Prospectus" means the form of prospectus included in the
Registration Statement as supplemented by the prospectus supplement thereto to
be dated May 16, 2002 filed by the Company with the Commission pursuant to Rule
424(b). Each preliminary prospectus supplement or amendment thereto relating to
the Shares is herein referred to as a "Preliminary Prospectus." Any reference in
this Agreement to the Registration Statement, any Preliminary Prospectus or to
the Prospectus or to any amendment or supplement to any of the foregoing
documents shall be deemed to refer to and include any documents incorporated by
reference therein, and, in the case of any reference herein to any Prospectus,
also shall be deemed to include any documents incorporated by reference therein,
and any supplements or amendments thereto, filed with
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the Commission after the date of filing of the Prospectus under Rules 424(b) or
430A, and prior to the termination of the offering of the Shares by the
Underwriters.
(ii) The Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
State of Illinois, with corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus. Each of the
subsidiaries of the Company listed on Schedule IV hereto (collectively, the
"Subsidiaries") has been duly incorporated or formed and is validly existing as
a corporation, limited liability company or other entity in good standing under
the laws of the jurisdiction of its incorporation or formation, as the case may
be, with full power and authority to own or lease its properties and conduct its
business as described in the Prospectus. The Company does not have any other
subsidiary, direct or indirect, that is a "significant subsidiary" of the
Company as defined in Rule 1-02(w) of Regulation S-X under the Act. The Company
and each of the Subsidiaries are duly qualified to transact business in all
jurisdictions in which the conduct of their business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and the Subsidiaries, taken as a whole.
The outstanding shares of capital stock of each Subsidiary that is a corporation
have been duly authorized and validly issued, are fully paid and non-assessable
and are owned by the Company or another Subsidiary free and clear of all liens,
encumbrances and equities and claims, other than liens arising under the Credit
Agreement dated as of March 28, 2002 among the Company, the lenders party
thereto, JP Morgan Chase Bank, as administrative agent, and JP Morgan Securities
Inc. and Banc of America Securities LLC as joint arrangers and bookrunners (the
"Credit Agreement"). The outstanding membership or equity interests of each
Subsidiary that is a limited liability company or other entity have been duly
authorized, validly issued and are fully paid and non-assessable and are owned
by the Company or another Subsidiary free and clear of all liens, encumbrances
and equities and claims, other than liens arising under the Credit Agreement. No
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of capital
stock, membership interests, equity interests or other ownership interests in
the Subsidiaries are outstanding.
(iii) The outstanding shares of capital stock of
the Company (the "Capital Stock"), including all outstanding shares of Class A
Common Stock, Class B Common Stock, par value $0.01 per share (the "Class B
Common Stock"), Class C Common Stock, par value $0.01 per share (the "Class C
Common Stock"), and Series A Cumulative Exchangeable Redeemable Preferred Stock
due 2009, stated value $1,000 per share (the "Preferred Stock"), have been duly
authorized and validly issued and are fully paid and non-assessable and have not
been issued in violation of any preemptive rights. The Class A Common Stock,
Class B Common Stock and the Class C Common Stock are herein collectively called
the "Common Stock." The portion of the Shares to be issued and sold by the
Company have been duly authorized and when issued and paid for as contemplated
herein will be validly issued, fully paid and non-assessable. The portion of the
Shares to be sold by the Selling Shareholders upon conversion of Class B Common
Stock or exercise of warrants in accordance with the terms and conditions
thereof have been duly authorized and when issued upon such conversion or
exercise, as the case may be, will be validly issued, fully paid and
non-assessable. No preemptive rights of stockholders exist with respect to any
of the Shares or the issue and sale thereof. Neither the
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filing of the Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than those which
have been waived or satisfied, for or relating to the registration or sale of
any shares of Capital Stock.
(iv) The information set forth under the caption
"Capitalization" in the Prospectus as to actual issued and outstanding Capital
Stock is true and correct and as to pro forma and pro forma as adjusted issued
and outstanding Capital Stock is true and correct in all material respects. All
of the Shares conform as to legal matters in all material respects to the
description thereof contained in the Prospectus. The form of certificates for
the Shares conforms in all material respects to the applicable requirements of
the Illinois Business Corporation Act.
(v) The Commission has not issued an order
preventing or suspending the use of any Prospectus relating to the proposed
offering of the Shares nor instituted proceedings for that purpose. The
Registration Statement contains, and the Prospectus and any amendments or
supplements thereto will contain, all statements which are required to be stated
therein by, and will conform to, the requirements of the Act and the Rules and
Regulations. The documents incorporated, or to be incorporated, by reference in
the Prospectus, at the time filed with the Commission conformed or will conform,
in all material respects to the requirements of the Securities Exchange Act of
1934, as amended ("Exchange Act"), or the Act, as applicable, and the rules and
regulations of the Commission thereunder. The Registration Statement and any
amendments thereto do not contain, and will not contain, any untrue statement of
a material fact and do not omit, and will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments and supplements thereto do not
contain, and will not contain, any untrue statement of material fact and do not
omit, and will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus, or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
through the Representatives, specifically for use in the preparation thereof.
(vi) The consolidated financial statements of the
Company and the Subsidiaries, together with related notes and schedules included
or incorporated by reference in the Prospectus, present fairly the financial
position and the results of operations and cash flows of the Company and the
consolidated Subsidiaries, at the indicated dates and for the indicated periods.
Such financial statements and related schedules have been prepared in accordance
with generally accepted accounting principles, consistently applied throughout
the periods involved, except as disclosed therein, and all adjustments necessary
for a fair presentation of results for such periods have been made. The summary
financial data included or incorporated by reference in the Prospectus presents
fairly the information shown therein and such data has been compiled on a basis
consistent with the financial statements presented therein and the books and
records of the Company. The pro forma financial statements and other pro forma
financial information included or incorporated by reference in the Prospectus
present fairly the information shown therein, have been prepared in accordance
with
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the Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein. The statistical data included in the Prospectus is based on or derived
from sources that the Company believes to be materially accurate and reliable.
(vii) To the knowledge of the Company after
reasonable inquiry, each of KPMG LLP, PricewaterhouseCoopers LLP, Ernst & Young
LLP and Kraft Bros., Esstman, Patton & Harrell, PLLC, who have certified certain
of the financial statements filed with the Commission and incorporated by
reference in the Prospectus are independent public accountants as required by
the Act and the Rules and Regulations.
(viii) There is no action, suit, claim or
proceeding pending or, to the knowledge of the Company, threatened against the
Company or any of the Subsidiaries before any court or administrative agency
(including the Commission) or otherwise which if determined adversely to the
Company or any of its Subsidiaries would reasonably be expected to result in any
material adverse change in the earnings, business, management, properties,
assets, rights, operations, financial condition or prospects of the Company and
of the Subsidiaries taken as a whole or prevent or delay the consummation of the
transactions contemplated hereby, except as set forth in the Prospectus.
(ix) The Company and each Subsidiary has good and
marketable title to all of the properties and assets that are material to the
business of the Company and the Subsidiaries and reflected as owned by it in the
consolidated financial statements of the Company hereinabove described or
described in the Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those arising under the Credit Agreement,
reflected in such financial statements or described in the Prospectus or that do
not, individually or in the aggregate, materially interfere with the use made
and proposed to be made of such properties by the Company and the Subsidiaries.
The Company and the Subsidiaries occupy their leased properties under valid and
binding leases, with such exceptions as would not reasonably be expected to have
a material adverse effect on the Company and the Subsidiaries, taken as a whole.
(x) The Company and the Subsidiaries have filed,
or obtained extensions to file, all material Federal, State, local and foreign
income and franchise tax returns which have been required to be filed, which
returns are accurate in all material respects and have paid all taxes indicated
by such returns and all assessments received by them or any of them to the
extent that such taxes have become due and are not being contested in good faith
and for which an adequate reserve for accrual has been established in accordance
with generally accepted accounting principles, with such exceptions as would not
reasonably be expected to have a material adverse effect on the Company and the
Subsidiaries, taken as a whole. All material tax liabilities incurred by the
Company or any Subsidiary but not yet due have been adequately provided for in
the consolidated financial statements of the Company hereinabove described, and
the Company does not know of any actual or proposed additional material tax
assessments.
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(xi) Since the respective dates as of which
information is given in the Prospectus, as it may be amended or supplemented,
there has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, rights, operations, financial condition or
prospects of the Company and its Subsidiaries taken as a whole, whether or not
occurring in the ordinary course of business, and there has not been any
material transaction entered into or any material transaction that is probable
of being entered into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes and transactions
described in the Prospectus, as it may be amended or supplemented. The Company
and the Subsidiaries have no material contingent obligations which are not
disclosed in the Company's financial statements which are incorporated by
reference in the Prospectus.
(xii) Neither the Company nor any of the
Subsidiaries is, or with the giving of notice or lapse of time or both, would
be, in violation of or in default under (i) its articles of incorporation,
by-laws, limited liability company agreement or other organizational documents
or (ii) any material indenture, mortgage, deed of trust, lease, agreement or
other instrument to which it is a party or by which it, or any of its assets, is
bound and, solely with respect to this clause (ii), which violation or default
would have a material adverse effect on the earnings, business, management,
properties, assets, rights, operations, financial condition or prospects of the
Company and the Subsidiaries taken as a whole. The execution and delivery of
this Agreement and the consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not conflict with or, with the giving
of notice or lapse of time or both, result in a breach of any of the terms or
provisions of, or constitute a default under, (i) any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or any of their
respective properties is bound, with such exceptions as would not reasonably be
expected to have a material adverse effect on the Company or the Subsidiaries,
taken as a whole, or the Shares to be sold by the Company or the transactions
contemplated by this Agreement, or (ii) of the articles of incorporation,
by-laws, limited liability company agreement or other organizational documents
of the Company or any Subsidiary or any law, order, rule, regulation, judgement,
order, writ or decree applicable to the Company or any Subsidiary of any court
or of any government, regulatory body or administrative agency or other
governmental body having jurisdiction.
(xiii) The execution and delivery of, and the
performance by the Company of its obligations under, this Agreement has been
duly and validly authorized by all necessary corporate action on the part of the
Company, and this Agreement has been duly executed and delivered by the Company.
(xiv) Each approval, consent, order,
authorization, designation, declaration or filing by or with any regulatory body
or administrative agency or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the consummation
of the transactions herein contemplated (except such additional steps as may be
required by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD") or
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such additional steps as may be necessary to qualify the Shares for public
offering by the Underwriters under state securities or Blue Sky laws) has been
obtained or made and is in full force and effect, except for such approvals,
consents, orders, authorizations, designations, declarations or filings that the
failure to obtain or make would not reasonably be expected to have a material
adverse effect on the Company and the Subsidiaries, taken as a whole.
(xv) The Company and each of the Subsidiaries
hold, or can acquire on reasonable terms, all material licenses, certificates
and permits from any government, regulatory body or administrative agency or
other governmental body which are necessary to the conduct of their businesses
as described in the Prospectus. The Company and the Subsidiaries each own or
possess, or can acquire on reasonable terms, the right to use all material
patents, patent rights, trademarks, trade names, service marks, service names,
copyrights, license rights, know-how (including trade secrets and other
unpatented and unpatentable proprietary or confidential information, systems or
procedures) and other intellectual property rights necessary to carry on their
business (the "Intellectual Property"); neither the Company nor any of the
Subsidiaries has infringed, and none of the Company or the Subsidiaries have
received notice of conflict with, any Intellectual Property of any other person
or entity, with such exceptions as would not reasonably be expected to have a
material adverse effect on the Company and the Subsidiaries, taken as a whole.
The Company has taken all reasonable steps necessary to secure interests in such
Intellectual Property from its contractors, with such exceptions as would not
reasonably be expected to have a material adverse effect on the Company and the
Subsidiaries, taken as a whole. There are no material outstanding options,
licenses or agreements of any kind relating to the Intellectual Property of the
Company that are required to be described in the Prospectus and are not
described. The Company is not a party to or bound by any material options,
licenses or agreements with respect to the Intellectual Property of any other
person or entity that are required to be set forth in the Prospectus and are not
described. None of the technology employed by the Company has been obtained or
is being used by the Company in violation of any contractual obligation binding
on the Company or, to the knowledge of the Company, any of its officers,
directors or employees or otherwise in violation of the rights of any persons or
entities, with such exceptions as would not reasonably be expected to have a
material adverse effect on the Company and the Subsidiaries, taken as a whole.
The Company has not received any written or oral communications alleging that
the Company or any of the Subsidiaries has violated, infringed or conflicted
with, or, by conducting its business as set forth in the Prospectus, would
violate, infringe or conflict with, any of the Intellectual Property of any
other person or entity, with such exceptions as would not reasonably be expected
to have a material adverse effect on the Company and the Subsidiaries, taken as
a whole. The Company knows of no infringement by others of Intellectual Property
owned by or licensed to the Company or any of the Subsidiaries, with such
exceptions as would not reasonably be expected to have a material adverse effect
on the Company and the Subsidiaries, taken as a whole.
(xvi) Neither the Company, any of the Subsidiaries
nor to the Company's knowledge, any of their respective officers or directors
(or any of the officers' or directors' respective affiliates), has taken or will
take, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of
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the price of the shares of Class A Common Stock to facilitate the sale or resale
of the Shares. The Company acknowledges that the Underwriters may engage in
passive market making transactions in the Shares on the Nasdaq National Market
in accordance with Regulation M under the Exchange Act.
(xvii) Neither the Company nor any Subsidiary is
or, after giving effect to the offering and sale of the Shares contemplated
hereunder and the application of the net proceeds from such sale as described in
the Prospectus, will be an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "1940 Act") and the
rules and regulations of the Commission thereunder.
(xviii) The Company and its Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xix) The Company and its Subsidiaries carry, or
are covered by, insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses.
(xx) The Company and its Subsidiaries are 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 and each Subsidiary would have any
liability; the Company and its Subsidiaries have not incurred and do not expect
to incur liability under (i) Title IV of ERISA with respect to termination of,
or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan" for
which the Company or any Subsidiary 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, with such exceptions as would not
reasonably be expected to have a material adverse effect on the Company and the
Subsidiaries, taken as a whole.
(xxi) The Company and the Subsidiaries validly
hold licenses issued by the Federal Communications Commission ("FCC") for each
of the radio stations owned or operated by the Company and the Subsidiaries (the
"Owned Station Licenses"). With respect to each station to which programming or
sales marketing services are provided by the Company or the Subsidiaries, but
which are not owned by the Company and the Subsidiaries, to the Company's
knowledge, the parties (each, a "Third Party Licensee") with which the Company
and the
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Subsidiaries have entered into such programming or marketing arrangements
validly hold the licenses issued by the FCC (the "Programmed Station Licenses")
for such stations. Except as set forth in the Prospectus, and except for matters
which would not reasonably be expected to result in a material adverse change in
the earnings, business, management, properties, assets, rights, operations,
financial condition or prospects of the Company and the Subsidiaries taken as a
whole, there is not pending or threatened against the Company or the
Subsidiaries, any application, action, petition, objection or other pleading, or
any proceeding (each, an "Action") before any governmental or judicial
authority, including, without limitation, the FCC, which questions or contests
the validity of, or seeks the revocation, non-renewal or suspension of, or which
seeks an involuntary adverse modification of, any of the Owned Station Licenses
or the Programmed Station Licenses. To the Company's knowledge, and except for
matters which would not reasonably be expected to result in a material adverse
change in the earnings, business, management, properties, assets, rights,
operations, financial condition or prospects of the Company and the Subsidiaries
taken as a whole, there is not pending or threatened against any Third Party
Licensee any Action before any governmental or judicial authority, including,
without limitation, the FCC, which questions or contests the validity of, or
seeks the revocation, non-renewal or suspension of, or which seeks an
involuntary adverse modification of any of the Programmed Station Licenses.
Except as set forth in the Prospectus, and except for matters which would not
reasonably be expected to result in a material adverse change in the earnings,
business, management, properties, assets, rights, operations, financial
conditions or prospects of the Company and the Subsidiaries taken as a whole,
there is not pending or threatened against the Company or the Subsidiaries or,
to the Company's knowledge, any Third Party Licensee, any Action before any
governmental or judicial authority, including without limitation the FCC, which
could cause the Company or the Subsidiaries to be ineligible to hold any of the
Owned Station Licenses or provide programming or sales marketing services to any
Third Party Licensee. Except as set forth in the Prospectus, the Company and the
Subsidiaries and, to the Company's knowledge, the Third Party Licensees, have
submitted to the FCC all material documents, applications, fees and other
payments and reports required pursuant to the Communications Act of 1934, as
amended, and the rules, regulations and policies of the FCC and are in material
compliance therewith with respect to the ownership and operation of the Owned
Station Licenses and the Programmed Station Licenses, as the case may be, and
the provision of programming or sales marketing services by the Company and the
Subsidiaries to the Third Party Licensees. The Company and Subsidiaries, and, to
the Company's knowledge, the Third Party Licensees, possess adequate
certificates, authorizations, consents, orders, approvals, licenses or permits
which are in full force and effect issued by appropriate governmental agencies
or bodies other than the FCC necessary to the ownership of their respective
properties and the conduct of the businesses now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority, consent, order, approval, license or permit.
(xxii) Except as set forth in the Prospectus,
neither the Company nor any of its Subsidiaries is a party to any existing or
proposed contract, agreement, understanding or other arrangement that is
required to be disclosed in the Prospectus or that, based on facts existing as
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of the date hereof, would be required to be disclosed in a filing under the
Exchange Act or the rules and regulations thereunder with (a) any current or
former officer, director, employee or holder of more than 5% of any class of the
Company's Capital Stock; (b) any parent, spouse, child, brother, sister or other
family relation of any such officer, director, employee or holder of more than
5% of any class of the Company's Capital Stock; (c) any corporation, partnership
or other entity of which any such officer, director, employee or stockholder or
any such family relation is an officer, director, employee, partner or greater
than 5% owner (based on percentage ownership of voting interest); or (d) any
trust with respect to which any such entity is a trustee or beneficiary.
(b) Each of the Selling Shareholders severally represents
and warrants to each of the Underwriters and the Company as follows:
(i) Such Selling Shareholder now has and at the
Closing Date and the Option Closing Date, as the case may be (as such dates are
hereinafter defined) will have valid and marketable title to the Firm Shares to
be sold by such Selling Shareholder, free and clear of any liens, encumbrances,
equities and claims, and full right, power and authority to effect the sale and
delivery of such Firm Shares; and upon the delivery of, against payment for,
such Firm Shares pursuant to this Agreement, such Selling Shareholder will
deliver valid title thereto, free and clear of any liens, encumbrances, equities
and claims.
(ii) Such Selling Shareholder has full right,
power and authority to execute and deliver this Agreement, the Power of
Attorney, and the Custodian Agreement referred to below and to perform its
obligations under such Agreements. The execution and delivery of this Agreement
and the consummation by such Selling Shareholder of the transactions herein
contemplated and the fulfillment by such Selling Shareholder of the terms hereof
will not require any consent, approval, authorization, or other order of any
court, government regulatory body or administrative agency or other governmental
body (except as may be required under the Act, state securities laws or Blue Sky
laws) and will not result in a breach of any of the terms and provisions of, or
constitute a default under, organizational documents of such Selling
Shareholder, if not an individual, or any indenture, mortgage, deed of trust or
other agreement or instrument to which such Selling Shareholder is a party, or
of any order, rule or regulation applicable to such Selling Shareholder of any
court or of any regulatory body or administrative agency or other governmental
body having jurisdiction, with such exceptions as would not reasonably be
expected to have a material adverse effect on the Shares to be sold by such
Selling Shareholder or the transactions contemplated by this Agreement.
(iii) Such Selling Shareholder, to its knowledge,
has not taken and will not take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
Class A Common Stock in violation of the Exchange Act and, other than as
permitted by the Act, the Selling Shareholder will not distribute any prospectus
or other offering material in connection with the offering of the Shares.
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(iv) The information pertaining to such Selling
Shareholder under the caption "Selling Shareholders" in the Prospectus (other
than any numbers expressed as percentages) does not as of the date of the
Prospectus contain an untrue statement of a material fact and does not omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Sellers agree to sell to the Underwriters and each Underwriter agrees, severally
and not jointly, to purchase, at a price of $18.886 per share, the number of
Firm Shares set forth opposite the name of each Underwriter in Schedule I
hereof, subject to adjustments in accordance with Section 9 hereof. The number
of Firm Shares to be purchased by each Underwriter from each Seller shall be as
nearly as practicable in the same proportion to the total number of Firm Shares
being sold by each Seller as the number of Firm Shares being purchased by each
Underwriter bears to the total number of Firm Shares to be sold hereunder. The
obligations of the Company and of each of the Selling Shareholders shall be
several and not joint.
(b) Certificates in negotiable form for the total number
of the Shares to be sold hereunder by the Selling Shareholders have been placed
in custody with U.S. Bank, N.A. as custodian (the "Custodian") pursuant to the
Custodian Agreement executed by each Selling Shareholder for delivery of all
Firm Shares and any Option Shares to be sold hereunder by the Selling
Shareholders. Each of the Selling Shareholders specifically and severally agrees
that the Firm Shares and any Option Shares represented by the certificates held
in custody for such Selling Shareholder under the Custodian Agreement are
subject to the interests of the Underwriters hereunder, that the arrangements
made by such Selling Shareholder for such custody are to that extent
irrevocable, and that the obligations of such Selling Shareholder hereunder
shall not be terminable by any act or deed of the Selling Shareholders (or by
any other person or entity including the Company, the Custodian or the
Underwriters) or by operation of law (including the dissolution of such Selling
Shareholder that is an entity) or by the occurrence of any other event or
events, except as set forth in the Custodian Agreement. If any such event should
occur prior to the delivery to the Underwriters of the Firm Shares or the Option
Shares hereunder, certificates for the Firm Shares or the Option Shares, as the
case may be, shall be delivered by the Custodian in accordance with the terms
and conditions of this Agreement as if such event has not occurred. The
Custodian is authorized to receive and acknowledge receipt of the proceeds of
sale of the Shares held by it against delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is
to be made in Federal (same day) funds via wire transfer to an account
designated by the Company for the Shares to be sold by it and to an account
designated by the Custodian for the Shares to be sold by the Selling
Shareholders, in each case against delivery of certificates therefor to the
Representatives for the several accounts of the Underwriters. Such payment and
delivery are to be made through the facilities of The Depository Trust Company
at 10:00 a.m., New York time, on the fourth business day after the date of this
Agreement or at such other time and date not later than five business days
thereafter as you, the
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Company and the Selling Shareholders shall agree upon, such time and date being
herein referred to as the "Closing Date." (As used herein, "business day" means
a day on which the New York Stock Exchange is open for trading and on which
banks in New York are open for business and not permitted by law or executive
order to be closed.)
(d) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and the Selling Shareholder listed on Schedule III hereto
hereby grant an option to the several Underwriters to purchase the Option Shares
at the price per share as set forth in the first paragraph of this Section 2.
The maximum number of Option Shares to be sold by the Company and the Selling
Shareholder is set forth opposite their respective names on Schedule III hereto.
The option granted hereby may be exercised in whole or in part by giving written
notice (i) at any time before the Closing Date and (ii) only once thereafter
within 30 days after the date of this Agreement, by you, as Representatives of
the several Underwriters, to the Company, the Attorney-in-Fact and the Custodian
setting forth the number of Option Shares as to which the several Underwriters
are exercising the option, the names and denominations in which Option Shares
are to be registered and the time and date at which such certificates are to be
delivered. If the option granted hereby is exercised in part, the respective
number of Option Shares to be sold by the Company and the Selling Shareholder
listed in Schedule III hereto shall be determined on a pro rata basis in
accordance with the percentages set forth opposite their names on Schedule III
hereto, adjusted by you in such manner as to avoid fractional shares. The time
and date at which certificates for Option Shares are to be delivered shall be
determined by the Representatives but shall not be earlier than three nor later
than 10 full business days after the exercise of such option, nor in any event
prior to the Closing Date (such time and date being herein referred to as the
"Option Closing Date"). If the date of exercise of the option is three or more
days before the Closing Date, the notice of exercise shall set the Closing Date
as the Option Closing Date. The number of Option Shares to be purchased by each
Underwriter shall be in the same proportion to the total number of Option Shares
being purchased as the number of Firm Shares being purchased by such Underwriter
bears to the total number of Firm Shares, adjusted by you in such manner as to
avoid fractional shares. The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the Firm
Shares by the Underwriters. You, as Representatives of the several Underwriters,
may cancel such option at any time prior to its expiration by giving written
notice of such cancellation to the Company and the Attorney-in-Fact. To the
extent, if any, that the option is exercised, payment for the Option Shares
shall be made on the Option Closing Date in Federal (same day) funds via wire
transfer to an account designated by the Company for the Option Shares to be
sold by it and to an account designated by the Selling Shareholders for the
Option Shares to be sold by the Selling Shareholders, against delivery of
certificates therefor through the facilities of The Depository Trust Company,
New York, New York.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a
public offering of the Firm Shares as soon as the Representatives deem it
advisable to do so. The Firm Shares are to be initially offered to the public at
the initial public offering price set forth in the Prospectus. The
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Representatives may from time to time thereafter change the public offering
price and other selling terms. To the extent, if at all, that any Option Shares
are purchased pursuant to Section 2 hereof, the Underwriters will offer them to
the public on the foregoing terms.
It is further understood that you will act as the
Representatives for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and
the several other Underwriters.
4. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
(a) The Company covenants and agrees with the several
Underwriters that:
(i) The Company will (A) use its best efforts to
cause the Registration Statement to become effective or, if the procedure in
Rule 430A of the Rules and Regulations is followed, to prepare and timely file
with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus
in a form approved by the Representatives containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance
on Rule 430A of the Rules and Regulations, (B) not file any amendment to the
Registration Statement or supplement to the Prospectus or document incorporated
by reference therein of which the Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives shall have
reasonably objected in writing promptly after having been furnished a copy, or
which is not in compliance with the Rules and Regulations and (C) file on a
timely basis all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission subsequent to the date
of the Prospectus and prior to the termination of the offering of the Shares by
the Underwriters.
(ii) The Company will advise the Representatives
and the Selling Shareholders promptly (A) when the Registration Statement or any
post-effective amendment thereto shall have become effective, (B) of receipt of
any comments from the Commission relating to the Prospectus, (C) of any request
of the Commission for amendment of the Registration Statement or for supplement
to the Prospectus or for any additional information, (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or of the institution of any proceedings
for that purpose and (E) of any other notice or communication, written or oral,
to or from the Commission between the date of the Agreement and 30 days after
the date of this Agreement. The Company will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the
Representatives in endeavoring to qualify the Shares for sale under the
securities laws of such jurisdictions as the Representatives may reasonably have
designated in writing and will make such applications, file such documents, and
furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in
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any jurisdiction where it is not now so qualified or required to file such a
consent. The Company will, from time to time, prepare and file such statements,
reports, and other documents, as are or may be required to continue such
qualifications in effect for so long a period as the Representatives may
reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the
order of, the Representatives, from time to time, as many copies of any
Preliminary Prospectus as the Representatives may reasonably request. The
Company will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Act, as many copies
of the Prospectus in final form, or as thereafter amended or supplemented, as
the Representatives may reasonably request. The Company will deliver to the
Representatives at or before the Closing Date, four signed copies of the
Registration Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the Representatives such number of copies of the
Registration Statement (including such number of copies of the exhibits filed
therewith that may reasonably be requested), including documents incorporated by
reference therein, and of all amendments and supplements thereto, as the
Representatives may reasonably request.
(v) The Company will comply with the Act and the
Rules and Regulations, and the Exchange Act, and the rules and regulations of
the Commission thereunder, so as to permit the completion of the distribution of
the Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, rule
or regulation the Company promptly will either (i) prepare and file with the
Commission an appropriate amendment to the Registration Statement or supplement
to the Prospectus or (ii) prepare and file with the Commission an appropriate
filing under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law, rule or regulation.
(vi) The Company will make generally available to
its security holders, as soon as it is practicable to do so, but in any event
not later than 15 months after the effective date of the Registration Statement,
an earnings statement (which need not be audited) in reasonable detail, covering
a period of at least 12 consecutive months beginning after the effective date of
the Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations and will advise you in writing when such statement has been so made
available.
(vii) No offering, sale, short sale or other
disposition of any shares of Class A Common Stock or other securities
convertible into or exchangeable or exercisable for shares of Class A Common
Stock or derivative of Class A Common Stock (or agreement for such) will be made
for a
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period of 90 days after the date of this Agreement, directly or indirectly, by
the Company or any of the Subsidiaries otherwise than hereunder or with the
prior written consent of Deutsche Bank Securities Inc. ("DBSI"), except (A)
issuances of Capital Stock pursuant to the conversion or exchange of convertible
or exchangeable securities or the exercise of warrants or options, in each case,
outstanding or acquisitions pending on the date of this Agreement, (B) grants of
employee stock options pursuant to the terms of a plan in effect on this date of
this Agreement, issuance of capital stock pursuant to the exercise of such
options or issuances of capital stock pursuant to employee stock purchase plans,
incentive, benefit and dividend reinvestment plans in effect on the date of this
Agreement and (C) offers of shares of Capital Stock in connection with
acquisitions.
(viii) The Company will use its best efforts to
list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(ix) The Company has caused each officer and
director and specific shareholders of the Company to furnish to you, on or prior
to the date of this Agreement, a letter or letters, in form and substance
satisfactory to the Underwriters, pursuant to which each such person has agreed
not to offer, sell, sell short or otherwise dispose of any shares of Class A
Common Stock of the Company or any other securities convertible, exchangeable or
exercisable for shares of Class A Common Stock or derivative of shares of Class
A Common Stock owned by such person or request the registration for the offer or
sale of any of the foregoing (or as to which such person has the right to direct
the disposition of) for a period of 90 days after the date of this Agreement,
directly or indirectly, except with the prior written consent of DBSI
(collectively, the "Lockup Agreements"). The Company will not waive any
agreement by any person or entity not to offer, sell, sell short or otherwise
dispose of any shares of Class A Common Stock or any other securities
convertible, exchangeable or exercisable for shares of Class A Common Stock or
derivative of shares of Class A Common Stock owned by such person or entity, in
each case without the prior written consent of DBSI.
(x) The Company shall apply the net proceeds of
its sale of the Shares as set forth in the Prospectus.
(xi) The Company shall not invest, or otherwise
use the proceeds received by the Company from its sale of the Shares in such a
manner as would require the Company or any of the Subsidiaries to register as an
investment company under the 1940 Act.
(xii) The Company will maintain a transfer agent
and, if necessary under the jurisdiction of incorporation of the Company, a
registrar for the Class A Common Stock.
(xiii) The Company will not, and will not authorize
any of its Subsidiaries or any of its or their respective officers or directors
(or any of the directors' or officers' respective affiliates) to take, directly
or indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
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(b) Each of the Selling Shareholders severally covenants
and agrees with the several Underwriters that:
(i) Other than as contemplated by this
Agreement, no offering, sale, short sale or other disposition of any shares of
Class A Common Stock or other securities convertible, exchangeable or
exercisable for Class A Common Stock or derivative of Class A Common Stock owned
by such Selling Shareholder or request the registration for the offer or sale of
any of the foregoing (or as to which such Selling Shareholder has the right to
direct the disposition of) will be made for a period of 90 days after the date
of this Agreement, directly or indirectly, by such Selling Shareholder otherwise
than hereunder or with the prior written consent of DBSI. Notwithstanding the
foregoing, such Selling Shareholder may, without the consent of DBSI, convert
any shares of Capital Stock that it owns into shares of Class A Common Stock or
transfer any shares of Class A Common Stock or securities convertible into or
exchangeable or exercisable for Class A Common Stock; provided, however, that
prior to any such transfer, each transferee shall execute an agreement,
satisfactory to DBSI pursuant to which each transferee shall agree to receive
and hold such shares of Class A Common Stock, or securities convertible into or
exchangeable or exercisable for Class A Common Stock, subject to the provisions
hereof, and there shall be no further transfer except in accordance with the
provisions hereof.
(ii) In order to document the Underwriters'
compliance with the reporting and withholding provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance
Act of 1983 with respect to the transactions herein contemplated, such Selling
Shareholder agrees to deliver to you prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-8 or W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
(iii) Such Selling Shareholder will not take,
directly or indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company in violation of the
Exchange Act.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Sellers under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company and counsel for the Selling Shareholders; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the Registration
Statement, Preliminary Prospectuses, the Prospectus, this Agreement, the
Underwriters' Selling Memorandum, the Underwriters' Invitation Letter, the
Listing Application, the Blue Sky Survey and any supplements or amendments
thereto; the filing fees of the Commission; the filing fees and expenses
(including legal fees and disbursements) incident to securing any required
review by the NASD of the terms of the sale of the Shares; the
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Listing Fee of the Nasdaq National Market; and the expenses, including the fees
and disbursements of counsel for the Underwriters, incurred in connection with
the qualification of the Shares under State securities or Blue Sky laws. The
Sellers shall not, however, be required to pay for any of the Underwriters'
expenses (other than those related to qualification under NASD regulation and
State securities or Blue Sky laws) except that, if this Agreement shall not be
consummated because any of the conditions in Section 6 hereof are not satisfied,
or because this Agreement is terminated by the Representatives pursuant to
Section 11 hereof, or by reason of any failure, refusal or inability on the part
of the Company or the Selling Shareholders to perform any undertaking or satisfy
any condition of this Agreement or to comply with any of the terms hereof on
their part to be performed, unless such failure, refusal or inability is due
primarily to the default or omission of any Underwriter, the Company shall
reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Shares or in
contemplation of performing their obligations hereunder; but the Company and the
Selling Shareholders shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits from the sale
by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the
Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option
Closing Date, as the case may be, of the representations and warranties of the
Company and the Selling Shareholders contained herein, and to the performance by
the Company and the Selling Shareholders of their covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made
within the applicable time period prescribed by, and in compliance with, the
Rules and Regulations, and any request of the Commission for additional
information (to be included in the Registration Statement or otherwise) shall
have been disclosed to the Representatives and complied with to their reasonable
satisfaction. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the knowledge of the
Company or the Selling Shareholders, shall be contemplated or threatened by the
Commission and no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the
Closing Date or the Option Closing Date, as the case may be, the opinions of (i)
Jones, Day, Reavis & Pogue, counsel for the Company, (ii) Paul, Hastings,
Janofsky & Walker LLP, special FCC counsel for the Company, (iii) Kolesar &
Leatham, Chtd., special Nevada counsel for the Company, (iv) Quarles & Brady
LLP, and (v) Moore & Van Allen PLLC, counsel for one of the Selling
Shareholders, each dated the
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Closing Date or the Option Closing Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the
Underwriters) to the effect set forth in Exhibits A-1, A-2, A-3, A-4 and A-5
hereto, respectively.
(c) The Representatives shall have received from Piper
Rudnick LLP, counsel for the Underwriters, an opinion dated the Closing Date or
the Option Closing Date, as the case may be, substantially to the effect
specified in subparagraphs (ii), (v), (xi) of Exhibit A-1 and subparagraph (i)
of Exhibits A-4 and A-5, and that the Company is a duly organized and validly
existing corporation under the laws of the State of Illinois. In addition to the
matters set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them
to believe that (i) the Registration Statement, or any amendment thereto, as of
the time it became effective under the Act (including the information deemed to
be a part of the Registration Statement at the time it became effective pursuant
to Rule 430A under the Act) as of the Closing Date or the Option Closing Date,
as the case may be, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) the
Prospectus, or any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date or the Option Closing Date, as
the case may be, contained or contains an 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 (except that such counsel need express no view as to
financial statements, schedules and statistical information therein). With
respect to such statement, Piper Rudnick LLP may state that their belief is
based upon the procedures set forth therein, but is without independent check
and verification.
(d) You shall have received, on each of the date hereof,
the Closing Date and, if applicable, the Option Closing Date, a letter addressed
to the Company and you, dated the date hereof, the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to you, of
each of KPMG LLP, PricewaterhouseCoopers LLP, Ernst & Young LLP and Kraft Bros.,
Esstman, Patton & Harrell, PLLC, confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that in their opinion the financial
statements and schedules examined by them and incorporated by reference in the
Prospectus comply in form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations; and containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained or incorporated by reference in the Prospectus.
(e) The Representatives shall have received on the
Closing Date and, if applicable, the Option Closing Date, as the case may be, a
certificate or certificates of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that, as of the Closing Date or
the Option Closing Date, as the case may be, each of them severally represents,
to the best of his knowledge after reasonable investigation, as follows:
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(i) The Registration Statement has become
effective under the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such purpose have
been taken or are, to his knowledge, contemplated or threatened by the
Commission;
(ii) The representations and warranties of the
Company contained in Section 1 hereof are true and correct in all material
respects (true and correct in all respects as to any representation or warranty
that is itself qualified as to materiality) and any as of the Closing Date or
the Option Closing Date, as the case may be;
(iii) All filings required to have been made
pursuant to Rules 424 or 430A under the Act have been made as and when required
by such rules;
(iv) He or she has carefully examined the
Registration Statement and the Prospectus and, in his or her opinion, as of the
effective date of the Registration Statement, the statements contained in the
Registration Statement were true and correct, and such Registration Statement
and Prospectus did not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, and
since the effective date of the Registration Statement, no event has occurred
which should have been set forth in a supplement to or an amendment of the
Prospectus which has not been so set forth in such supplement or amendment; and
(v) Since the respective dates as of which
information is given in the Registration Statement and Prospectus, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the business, management, properties,
assets, rights, operations, financial condition or prospects of the Company and
the Subsidiaries taken as a whole, whether or not arising in the ordinary course
of business, and no material adverse change in the status of the legal
proceedings or material developments with respect to any investigations
described in the Prospectus.
(f) The Company and the Selling Shareholders shall have
furnished to the Representatives such further certificates and documents
confirming the representations and warranties, covenants and conditions
contained herein and related matters as the Representatives may reasonably have
requested.
(g) The Lockup Agreements described in Section 4(a)(ix)
are in full force and effect.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representatives and to Piper
Rudnick LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters
-19-
hereunder may be terminated by the Representatives by notifying the Company and
the Selling Shareholders of such termination in writing or by telegram at or
prior to the Closing Date or the Option Closing Date, as the case may be.
In such event, the Selling Shareholders, the Company and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS.
The obligations of the Sellers to sell and deliver the portion
of the Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the Option Closing
Date, as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(1) to indemnify and hold harmless each
Underwriter and Selling Shareholder and each person or entity,
if any, who controls any Underwriter or Selling Shareholder
within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act, and each director, trustee and officer
of each Selling Shareholder against any losses, claims,
damages or liabilities to which such Underwriter or Selling
Shareholder or any such controlling person or entity or
director, trustee or officer may become subject under the Act
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading (in the case of the
Prospectus, not misleading in light of the circumstances under
which they were made); provided, however, that the Company
will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement, or
omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or
through the Representatives specifically for use in the
preparation thereof; and
(2) to reimburse each Underwriter and Selling
Shareholder and each such controlling person or entity and
such director, trustee or officer of each Selling Shareholder
upon demand for any legal or other out-of-pocket expenses
reasonably incurred by such Underwriter or Selling Shareholder
or such controlling person or entity, director, trustee or
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officer in connection with investigating or defending any such
loss, claim, damage or liability, action or proceeding or in
responding to a subpoena or governmental inquiry related to
the offering of the Shares, whether or not such Underwriter or
Selling Shareholder or such controlling person or entity,
director, trustee or officer is a party to any action or
proceeding. In the event that it is finally judicially
determined that such persons were not entitled to receive
payments for legal and other expenses pursuant to this
subparagraph, such person will promptly return all sums that
had been advanced pursuant hereto.
(3) The foregoing indemnity agreement, with
respect to a preliminary Prospectus or preliminary Prospectus
supplement, shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, claim, damage,
liability or expense purchased Shares, or any person
controlling such Underwriter, if a sufficient number of copies
of the Prospectus were timely delivered to the Underwriter
pursuant to Section 4 hereof and a copy of the Prospectus (as
then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person,
if required by law so to have been delivered, at or prior to
the confirmation of the sale of the Shares to such person, and
if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage,
liability or expense.
(4) This indemnity obligation will be in
addition to any liability which the Company may otherwise
have.
(b) Each Selling Shareholder agrees, severally and not
jointly, to indemnify the Company, the Underwriters and each person or entity,
if any, who controls the Company or any Underwriter 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 or such Underwriter or
controlling person or entity may become subject under the Act or otherwise to
the same extent as, and subject to the same limitations as, the indemnity
provided by the Company pursuant to Section 8(a) above; provided, however, that
such Selling Shareholder shall be liable in each case to the extent, but only to
the extent, that the untrue statement or alleged untrue statement or omission or
alleged omission upon which indemnification is based was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto based on information pertaining to such Selling
Shareholder that was furnished to the Company in writing by such Selling
Shareholder expressly for use therein. In no event, however, shall the liability
of any Selling Shareholder for indemnification under this Section 8(a) exceed
the proceeds received by such Selling Shareholder from the Underwriters in the
offering. This indemnity obligation will be in addition to any liability which
such Selling Shareholder may otherwise have.
(c) Each Underwriter severally and not jointly will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement, the Selling Shareholders,
and each person or entity, if any, who controls the Company or the Selling
Shareholders, or any director, trustee or officer of the Selling Shareholder
within the meaning of the
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Act, against any losses, claims, damages or liabilities to which the Company or
any such director, trustee, officer, Selling Shareholder, controlling person or
entity may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
(ii) the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading (in the case of the Prospectus, not misleading in light of the
circumstances under which they were made) or (iii) the failure of an Underwriter
to deliver a Prospectus, if a sufficient number of copies of the Prospectus were
timely delivered to the Underwriter pursuant to Section 4 hereof and a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to the person asserting the claim, if required by law
so to have been delivered, at or prior to the confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage, liability
or expense; and will reimburse upon demand any legal or other expenses
reasonably incurred by the Company, Selling Shareholder, or any such director,
officer, controlling person or entity in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that each Underwriter will be liable in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission has been made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically for use
in the preparation thereof. This indemnity obligation will be in addition to any
liability that such Underwriter may otherwise have.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person or entity in respect of
which indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person or entity against whom
such indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a), (b) or (c) shall be available to
any party who shall fail to give notice as provided in this Section 8(d) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a), (b) or (c). In case any such proceeding shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred (or within 30 days of
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presentation) the fees and expenses of the counsel retained by the indemnified
party in the event (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
assume the defense and employ counsel acceptable to the indemnified party within
a reasonable period of time after notice of commencement of the action. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to
local counsel) for all such indemnified parties, unless it would be
inappropriate for such indemnified parties to have the same counsel due to
actual or potential differing interests between or among them, in which case
each indemnified party may have separate counsel and the indemnifying party
shall be liable for the fees and expenses of each separate counsel. Such firm
shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) or (b) and, in the case of parties indemnified pursuant
to Section 8(c), by the Company in the case of a separate firm for the Company,
and by the Selling Shareholders in the case of a separate firm for the Selling
Shareholders. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding and does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of an indemnified party.
(e) To the extent the indemnification provided for in
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a), (b) or (c) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Selling Shareholders on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other shall be
deemed to be in the
-23-
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Shareholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 8(e) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 8(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (e), (i) no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, (ii) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation, and (iii) no Selling Shareholder shall be required
to contribute any amount in excess of the proceeds received by such Selling
Shareholder from the Underwriters in the offering. The Underwriters' obligations
in this Section 8(e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) In any proceeding relating to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction of any court having jurisdiction
over any other contributing party, agrees that process issuing from such court
may be served upon it by any other contributing party and consents to the
service of such process and agrees that any other contributing party may join it
as an additional defendant in any such proceeding in which such other
contributing party is a party.
(g) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 8 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred. A
successor to any Underwriter, or any person or entity controlling any
Underwriter, or to the Company, its directors or officers, or any person or
entity controlling the Company, or to any Selling Shareholder, its directors,
trustees or officers or any persons controlling any Selling
-24-
Shareholder, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case
may be, any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company or a Selling
Shareholder), you, as Representatives of the Underwriters, shall use your
reasonable efforts to procure within 36 hours thereafter one or more of the
other Underwriters or any others, in each case reasonably acceptable to the
Company, to purchase from the Company and the Selling Shareholders such amounts
as may be agreed upon and upon the terms set forth herein, the Shares which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Shares agreed to be purchased by
the defaulting Underwriter or Underwriters, then (a) if the aggregate number of
shares with respect to which such default shall occur does not exceed 10% of the
Shares to be purchased on the Closing Date or the Option Closing Date, as the
case may be, the other Underwriters shall be obligated, severally, in proportion
to the respective numbers of Shares which they are obligated to purchase
hereunder, to purchase the Shares which such defaulting Underwriter or
Underwriters failed to purchase, or (b) if the aggregate number of shares of
Shares with respect to which such default shall occur exceeds 10% of the Shares
to be purchased on the Closing Date or the Option Closing Date, as the case may
be, the Company and the Selling Shareholders or you as the Representatives of
the Underwriters will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the
Company or of the Selling Shareholders except to the extent provided in Sections
5 or 8 hereof; provided that if such default occurs with respect to the Option
Shares after the Closing Date, this Agreement will not terminate as to the
Shares purchased prior to such termination. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Closing Date or
Option Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you, as Representatives, may determine in order that
the required changes in the Registration Statement or in the Prospectus or in
any other documents or arrangements may be effected. The term "Underwriter"
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section 9 shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: (a) if to the Underwriters, to Deutsche
Bank Securities Inc., One South Street, Baltimore, Maryland 21202; Attention:
Syndicate Manager, with a copy to Deutsche Bank Securities Inc., 31 West 52nd
Street, New York, New York 10019, Attention: General Counsel; (b) if to the
Company, to Cumulus Media
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Inc., 3535 Piedmont Road, Building 14, Fourteenth Floor, Atlanta Georgia 30305,
Attention: General Counsel; or (c) the Selling Shareholders, to State of
Wisconsin Investment Board, 121 East Wilson Street, Madison, Wisconsin 53702,
Attention Jon Vanderploeg, with a copy to Quarles & Brady LLP, 411 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202, Attention: Charles M. Weber, and
to ING Capital LLC, 1325 Avenue of the Americas, 8th Floor, New York, NY 10019,
Attention William C. James.
11. TERMINATION.
This Agreement may be terminated by you by notice to the
Company and the Selling Shareholders (a) at any time prior to the Closing Date
or any Option Closing Date (if different from the Closing Date and then only as
to Option Shares) if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, rights, operations, financial condition or
prospects of the Company and the Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other national or
international calamity or crisis or change in economic or political conditions
if the effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the United States would, in your
reasonable judgment, make it impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of the Shares, or (iii) suspension of
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such Exchange, (iv) the enactment, publication, decree or other promulgation of
any statute, regulation, rule or order of any court or other governmental
authority which in your reasonable opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Company,
(v) the declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Exchange Act); (vii) the suspension of trading of the
Company's Class A Common Stock by the Nasdaq National Market, the Commission, or
any other governmental authority or, (viii) the taking of any action by any
governmental body or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a material adverse effect on the securities
markets in the United States; provided that clauses (ii), (iii), (v), (vii) and
(viii) shall be limited to matters arising after the date of this Agreement; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of
the Underwriters, the Company and the Selling Shareholders and their respective
successors, executors, administrators,
-26-
heirs and assigns, and the officers, directors and controlling persons referred
to herein, and no other person will have any right or obligation hereunder. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign merely because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company, the Selling Shareholders and the Underwriters
acknowledge and agree that the only information furnished or to be furnished by
any Underwriter to the Company for inclusion in any Prospectus or the
Registration Statement consists of the information set forth in the third,
ninth, and tenth through fifteenth paragraphs under the caption "Underwriting"
in the Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect, regardless of (a) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, by the Company, its directors or officers or any persons
controlling the Company or by any Selling Shareholder or any persons controlling
or any director, trustee or officer of any Selling Shareholder, (b) delivery of
and payment for the Shares under this Agreement, and (c) any termination of this
Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Selling Shareholders, the
Company and the several Underwriters in accordance with its terms.
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Shareholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
CUMULUS MEDIA INC.
By: /s/ Lewis W. Dickey, Jr.
--------------------------------------
President and Chief Executive Officer
State of Wisconsin Investment Board
By: /s/ Martin R. Gausvik
--------------------------------------
Attorney-in-Fact
ING Capital LLC
By: /s/ Martin R. Gausvik
--------------------------------------
Attorney-in-Fact
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
BEAR, STEARNS & CO. INC.
CIBC WORLD MARKETS CORP.
MORGAN STANLEY & CO. INCORPORATED
ROBERTSON STEPHENS, INC.
SUNTRUST CAPITAL MARKETS, INC.
UBS WARBURG LLC
ROBERT W. BAIRD & CO. INCORPORATED
JEFFERIES & Company, Inc.
As Representatives of the several
Underwriters listed on Schedule I
By: Deutsche Bank Securities Inc.
By:/s/ Charles J. Carey
----------------------------------
Authorized Officer
Charles J. Carey
Managing Director
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SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
Underwriter to be Purchased
- ----------- ---------------------
Deutsche Bank Securities Inc. 3,500,000
Bear, Stearns & Co. Inc. 1,500,000
CIBC World Markets Corp. 800,000
Morgan Stanley & Co. Incorporated 700,000
Robertson Stephens, Inc. 800,000
SunTrust Capital Markets, Inc. 800,000
UBS Warburg LLC 700,000
Robert W. Baird & Co. Incorporated 600,000
Jefferies & Company, Inc. 600,000
----------
Total 10,000,000
==========
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SCHEDULE II
SCHEDULE OF SELLING SHAREHOLDERS
Number of Firm Shares
Selling Shareholder to be Sold
------------------- ---------------------
State of Wisconsin Investment Board 800,000
ING Capital LLC 30,552
--------
Total 830,552
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SCHEDULE III
SCHEDULE OF OPTION SHARES
Maximum Number Percentage of
of Option Shares Total Number of
Name of Seller to be Sold Option Shares
-------------- ---------------- ---------------
Cumulus Media Inc. 1,380,000 92%
State of Wisconsin Investment Board 120,000 8%
---------- ----
Total 1,500,000 100%
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SCHEDULE IV
SCHEDULE OF SUBSIDIARIES
Name of Subsidiary Jurisdiction of Incorporation
- ------------------ -----------------------------
Cumulus Broadcasting Inc................................................ Nevada
Cumulus Licensing Corp.................................................. Nevada
Cumulus Wireless Services Inc........................................... Nevada
Southern Outdoor Graphics, Inc.......................................... Arkansas
Express Signs Inc....................................................... Arkansas
Toledo Radio, Inc....................................................... Ohio
Cumulus Internet Services Inc........................................... Nevada
Cumulus Telecommunications Inc.......................................... Nevada
Broadcast Software International Inc.................................... Nevada
Caribbean Communications Company Ltd.................................... Montserrat
Gem Radio Five, Ltd..................................................... Trinidad
Aurora of Bridgeport, LLC............................................... Delaware
Aurora of Westchester, LLC.............................................. Delaware
Aurora of Danbury, LLC.................................................. Delaware
Aurora of Poughkeepsie, LLC............................................. Delaware
Phoenix of Hendersonville, Inc.......................................... Tennessee
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