-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VilscsIN15zFhlU0IZ/C+ciex23FxJbY9KjSZy83nXy8zr3wJgvvTx8HpAdeG6bT Icok6AuX5E/WYQUje0zhSw== 0000950123-99-010337.txt : 19991118 0000950123-99-010337.hdr.sgml : 19991118 ACCESSION NUMBER: 0000950123-99-010337 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991117 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CUMULUS MEDIA INC CENTRAL INDEX KEY: 0001058623 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 364159663 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-89825 FILM NUMBER: 99759575 BUSINESS ADDRESS: STREET 1: 111 KILBOURNE AVE STREET 2: SUITE 2700 CITY: MILWAUKEE STATE: WI ZIP: 53202 BUSINESS PHONE: 4146152800 MAIL ADDRESS: STREET 1: 111 EAST KILBOURN AVE STREET 2: SUITE 2700 CITY: MILWAUKEE STATE: WI ZIP: 53202 S-3/A 1 CUMULUS MEDIA INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 17, 1999. REGISTRATION STATEMENT NO. 333-89825 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------------------ AMENDMENT NO. 2 TO Form S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------------------ CUMULUS MEDIA INC. (Exact name of Registrant as specified in its charter) ILLINOIS 4832 36-4159663 (State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or Organization) Classification Code Number) Identification No.)
111 EAST KILBOURN AVENUE, SUITE 2700, MILWAUKEE, WI 53202, (414) 615-2800 (Address, Including Zip Code and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) ------------------------------------ RICHARD W. WEENING, EXECUTIVE CHAIRMAN LEWIS W. DICKEY, JR., EXECUTIVE VICE CHAIRMAN CUMULUS MEDIA INC. 111 EAST KILBOURN AVENUE, SUITE 2700 MILWAUKEE, WI 53202 (414) 615-2800 (Name, address, including zip code, and telephone number, including area code, of agent for service) COPIES TO: WILLIAM F. SCHWITTER, ESQ. GEORGE R. KROUSE, JR., ESQ. PAUL, HASTINGS, JANOFSKY & WALKER LLP SIMPSON THACHER & BARTLETT 399 PARK AVENUE 425 LEXINGTON AVENUE NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10017 (212) 318-6000 (212) 455-2000
------------------------------------ Approximate date of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] ------------------------------------ CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION TITLE OF SHARES TO BE REGISTERED BE REGISTERED PER SHARE (1) PRICE (1) FEE - ----------------------------------------------------------------------------------------------------------------------------- Class A common stock, par value $0.01 per share......... 4,600,000 shares (2) $36,375 $167,325,000 $46,517 (3) - -----------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457. (2) Includes 600,000 shares issuable upon exercise of the Underwriters' over-allotment option. (3) $43,399 of the registration fee was previously paid in connection with the Company's filings on October 28, 1999 and November 4, 1999. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The expenses in connection with the distribution of the securities being registered are set forth in the following table (all amounts except the registration fee, the NASD fee and the Nasdaq National Market fee are estimated): Registration fee............................................ $ 46,517 NASD fee.................................................... 15,680 Nasdaq National Market fee.................................. 17,500 Printing expenses........................................... 150,000 Legal fees and expenses..................................... 250,000 Accounting fees and expenses................................ 250,000 Blue sky fees and expenses (including attorneys' fees)...... 50,000 Transfer agent fee.......................................... 25,000 Miscellaneous............................................... 447,500 ---------- TOTAL................................................ $1,252,197 ==========
- ------------ * To be completed by amendment. All expenses in connection with the issuance and distribution of the Class A common stock being offered will be borne by the Company (other than selling commissions). ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company maintains officers' and directors' liability insurance which will insure against liabilities that officers and directors of the Company may incur in such capacities. The Company has also entered into indemnification agreements with its directors and officers. Reference is made to the Proposed Form of Underwriting Agreement filed as Exhibit 1.1 which provides for indemnification of the directors and officers of the Company signing the Registration Statement and certain controlling persons of the Company against certain liabilities, including those arising under the Securities Act in certain instances, of the Underwriters. ITEM 16. EXHIBITS. There are filed with the Registration Statement the following exhibits:
EXHIBIT NO. DESCRIPTION - ----------- ----------- 1.1** Form of Underwriting Agreement between the Registrant and the Underwriters. 2.1* Asset Purchase Agreement and Plan of Reorganization by and between Cumulus Media Inc., Broadcast Software International Inc. and Ron Burley, dated as of September 15, 1999. 2.2* Option Agreement by and between Cumulus Broadcasting Company, Inc., Cumulus Licensing Corp., Cumulus Wireless Services Inc. and Green Bay Broadcasting Company, Inc., dated as of September 15, 1999. 2.3**** Asset Purchase Agreement by and between Cumulus Broadcasting, Inc., Cumulus Licensing Corp., Cumulus Wireless Services Inc., C.F. Radio, Inc., Cape Fear Radio, LLC, Cape Fear Broadcasting Company and Cape Fear Tower Systems, LLC dated as of September 23, 1999. 2.4**** Asset Purchase Agreement dated as of April 2, 1999, by and between Cumulus Broadcasting, Cumulus Licensing, Cumulus Wireless and Phillips Broadcasting Company, Inc.
II-1 3
EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.5**** Asset Purchase Agreement dated as of March 9, 1999 by and between Cumulus Broadcasting, Cumulus Licensing, Cumulus Wireless, HMH Broadcasting Inc., a Kentucky corporation and HMH Realty, LLC. 2.6**** Stock Purchase Agreement dated June 15, 1999, among the Company and M&F Calendar Holdings, L.P., Kevin C. Whitman, nassau Capital Partners L.P., NAS Partners I L.L.C., and Philip J. Giordano. 2.7**** Asset Purchase Agreement dated as of June 29, 1999, by and among Cumulus Broadcasting, Cumulus Licensing and Coast Radio, L.L.C., a Florida limited liability company. 4.1*** Form of Certificate of Designation with respect to Series A Cumulative Exchangeable Redeemable Preferred Stock due 2009. 4.2*** Form of Exchange Debenture Indenture between Cumulus Media Inc. and U.S. Bank Trust National Association, as Trustee. 4.3*** Form of Indenture between Cumulus Media Inc. and Firstar Bank of Minnesota, N.A., as Trustee. 5.1** Opinion of Holleb & Coff as to the validity of the Class A common stock. 10.1* Amended and Restated Credit Agreement among Cumulus Media Inc., Lehman Brothers Inc., Barclays Capital and Lehman Commercial Paper. 10.2* Cumulus Media Inc. 1999 Employee Stock Incentive Plan. 10.3* Cumulus Media Inc. 1999 Executive Stock Incentive Plan. 21.1* Subsidiaries of Cumulus Media Inc. 23.1* Consent of PricewaterhouseCoopers LLP. 23.2** Consent of Holleb & Coff (included in Exhibit 5.1). 23.3* Consent of Wipfli Ullrich Bertelson LLP. 23.4* Consent of KPMG LLP. 24.1* Powers of Attorney, included on page II-4.
- ------------ * Previously filed. ** Filed herewith. *** Incorporated by reference to our Registration Statement on Form S-1 (Registration Statement No. 333-48849) declared effective on June 26, 1998. **** Incorporated by reference to our Current Report on Form 8-K filed with SEC on November 3, 1999. ITEM 17. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any acts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in II-2 4 volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement; (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (a) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b) Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, as amended, and will be governed by the final adjudication of such issue. (c) The undersigned registrant hereby undertakes to file an application for the purpose of determining eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act. II-3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on November 17, 1999. CUMULUS MEDIA INC. By: /s/ RICHARD W. WEENING ------------------------------------ Richard W. Weening Executive Chairman Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE --------- -------- ---- /s/ RICHARD W. WEENING Executive Chairman, Treasurer and November 17, 1999 - --------------------------------------------- Director (Principal Executive Richard W. Weening Officer) /s/ RICHARD W. WEENING Executive Vice Chairman and November 17, 1999 - --------------------------------------------- Director Lewis W. Dickey, Jr., by Richard W. Weening, Attorney-in-Fact /s/ RICHARD W. WEENING President and Director November 17, 1999 - --------------------------------------------- William M. Bungeroth, by Richard W. Weening, Attorney-in-Fact /s/ RICHARD W. WEENING Vice President and Chief Financial November 17, 1999 - --------------------------------------------- Officer (Principal Accounting Richard J. Bonick, by Richard W. Weening, Officer) Attorney-in-Fact Director November , 1999 - --------------------------------------------- Ralph B. Everett /s/ RICHARD W. WEENING Director November 17, 1999 - --------------------------------------------- Robert H. Sheridan, III, by Richard W. Weening, Attorney-in-Fact Director November , 1999 - --------------------------------------------- Eric P. Robison
II-4 6 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ----------- ----------- 1.1** Form of Underwriting Agreement between the Registrant and the Underwriters. 2.1* Asset Purchase Agreement and Plan of Reorganization by and between Cumulus Media Inc., Broadcast Software International Inc. and Ron Burley, dated as of September 15, 1999. 2.2* Option Agreement by and between Cumulus Broadcasting Company, Inc., Cumulus Licensing Corp., Cumulus Wireless Services Inc. and Green Bay Broadcasting Company, Inc., dated as of September 15, 1999. 2.3**** Asset Purchase Agreement by and between Cumulus Broadcasting, Inc., Cumulus Licensing Corp., Cumulus Wireless Services Inc., C.F. Radio, Inc., Cape Fear Radio, LLC, Cape Fear Broadcasting Company and Cape Fear Tower Systems, LLC dated as of September 23, 1999. 2.4**** Asset Purchase Agreement dated as of April 2, 1999, by and between Cumulus Broadcasting, Cumulus Licensing, Cumulus Wireless and Phillips Broadcasting Company, Inc. 2.5**** Asset Purchase Agreement dated as of March 9, 1999 by and between Cumulus Broadcasting, Cumulus Licensing, Cumulus Wireless, HMH Broadcasting Inc., a Kentucky corporation and HMH Realty, LLC. 2.6**** Stock Purchase Agreement dated June 15, 1999, among the Company and M&F Calendar Holdings, L.P., Kevin C. Whitman, nassau Capital Partners L.P., NAS Partners I L.L.C., and Philip J. Giordano. 2.7**** Asset Purchase Agreement dated as of June 29, 1999, by and among Cumulus Broadcasting, Cumulus Licensing and Coast Radio, L.L.C., a Florida limited liability company. 4.1*** Form of Certificate of Designation with respect to Series A Cumulative Exchangeable Redeemable Preferred Stock due 2009. 4.2*** Form of Exchange Debenture Indenture between Cumulus Media Inc. and U.S. Bank Trust National Association, as Trustee. 4.3*** Form of Indenture between Cumulus Media Inc. and Firstar Bank of Minnesota, N.A., as Trustee. 5.1** Opinion of Holleb & Coff as to the validity of the Class A common stock. 10.1* Amended and Restated Credit Agreement among Cumulus Media Inc., Lehman Brothers Inc., Barclays Capital and Lehman Commercial Paper. 10.2* Cumulus Media Inc. 1999 Employee Stock Incentive Plan. 10.3* Cumulus Media Inc. 1999 Executive Stock Incentive Plan. 21.1* Subsidiaries of Cumulus Media Inc. 23.1* Consent of PricewaterhouseCoopers LLP. 23.2** Consent of Holleb & Coff (included in Exhibit 5.1). 23.3* Consent of Wipfli Ullrich Bertelson LLP. 23.4* Consent of KPMG LLP. 24.1* Powers of Attorney, included on page II-4.
- --------------- * Previously filed. ** Filed herewith. *** Incorporated by reference to our Registration Statement on Form S-1 (Registration Statement No. 333-48849) declared effective on June 26, 1998. **** Incorporated by reference to our Current Report on Form 8-K filed with the SEC on November 3, 1999. EX-1.1 2 FORM OF UNDERWRITING AGREEMENT 1 EXHIBIT 1.1 4,000,000 SHARES CUMULUS MEDIA INC. CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE UNDERWRITING AGREEMENT November __, 1999 2 November __, 1999 Morgan Stanley & Co. Incorporated Bear, Stearns & Co. Inc. Goldman, Sachs & Co. Prudential Securities Incorporated Lehman Brothers Inc. Banc of America Securities LLC, as Representatives of the several Underwriters, c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Dear Sirs and Mesdames: Cumulus Media Inc., an Illinois corporation (the "COMPANY"), proposes to issue and sell to the several Underwriters named in Schedule II hereto (the "UNDERWRITERS"), and certain shareholders of the Company (the "SELLING SHAREHOLDERS") named in Schedule I hereto severally propose to sell to the several Underwriters, an aggregate of 4,000,000 shares of the Class A Common Stock, par value $.01 per share, of the Company (the "FIRM SHARES"), of which 3,000,000 shares are to be issued and sold by the Company and 1,000,000 shares are to be sold by the Selling Shareholders, each Selling Shareholder selling the amount set forth opposite such Selling Shareholder's name in Schedule I hereto. Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc., Goldman, Sachs & Co., Prudential Securities Incorporated, Lehman Brothers Inc. and Banc of America Securities LLC shall act as representatives (the "REPRESENTATIVES") of the several Underwriters. The Company also proposes to issue and sell to the several Underwriters, and the Selling Shareholders severally propose to sell to the several Underwriters not more than an additional 600,000 shares of the Class A Common Stock, par value $.01 per share, of the Company (the "ADDITIONAL SHARES"), of which 300,000 shares are to be issued and sold by the Company and 150,000 shares are to be sold by each of the Selling Shareholders if and to the extent that the Representatives shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the "SHARES". The shares of Class A Common Stock, par value $.01 per 3 share, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the "COMMON STOCK". The Company and the Selling Shareholders are hereinafter sometimes collectively referred to as the "SELLERS". The Company has filed with the Securities and Exchange Commission (the "COMMISSION") a registration statement, including a prospectus, relating to the Shares. The registration statement as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS". If the Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term "Registration Statement" shall be deemed to include such Rule 462 Registration Statement. 1. Representations and Warranties. The Company represents and warrants to and agrees with each of the Underwriters and each of the Selling Shareholders that: a. The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. b. (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus conform and, as amended or supplemented, if applicable, will conform in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, 4 except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter or Selling Shareholder furnished to the Company in writing by such Underwriter through the Representatives or by or on behalf of such Selling Shareholder expressly for use therein. c. The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. d. Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims. e. This Agreement has been duly authorized, executed and delivered by the Company. f. The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus. g. The shares of Common Stock outstanding prior to the 5 issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable. h. The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights. i. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except for the registration of the Shares under the Securities Act and as may be required by the securities or Blue Sky laws of the various states or foreign securities laws in connection with the offer and sale of the Shares. j. There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement). k. There are no legal or governmental proceedings pending or, to the best knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which, if determined adversely to the Company or any of its subsidiaries, might have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries. l. Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 6 Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. m. Each of the Company and its subsidiaries is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder. n. The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole. o. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole. p. Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration 7 Statement. q. The statistical and market-related data included in the Prospe are based or derived from sources which the Company and its subsidiaries believe to be reliable and materially accurate. r. The Company and its subsidiaries validly hold the Federal Communications Commission ("FCC") licenses for each of the radio stations owned or operated by the Company and its subsidiaries (the "OWNED STATION LICENSES"). With respect to each station to which programming or sales marketing services are provided by the Company or its subsidiaries, but which are not owned by the Company and its subsidiaries, to the Company's knowledge, the parties with which the Company and its subsidiaries have entered into such programming or marketing arrangements validly hold the FCC licenses (the "PROGRAMMED STATION LICENSES") for such stations. Except as set forth in the Prospectus, no proceedings that would reasonably be expected to jeopardize the validity of the Owned Station Licenses are pending before or, to the Company's knowledge, threatened by, the FCC; and to the Company's knowledge, no proceedings that would reasonably be expected to jeopardize the validity of the Programmed Station Licenses are pending before, or threatened by, the FCC. The Company and its subsidiaries possess adequate certificates, authorizations, consents, orders, approvals, licenses or permits which are in full force and effect issued by other appropriate governmental agencies or bodies 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 and the Company and its subsidiaries are in compliance in all material respects with the Communications Act of 1934, as amended, and the rules, regulations and policies of the FCC. s. Based solely on the Company's actual knowledge, without independent investigation, after giving effect to the pending acquisitions (as described in the Registration Statement but not including any transaction described therein that is the subject of a letter of intent), the Company has no reason to believe that any of the representations, warranties and agreements contained in Sections 1(b), 1(k), 1(m), 1(n), 1(o), 1(p), 1(r) and 1(t) would not be true and correct; provided, however, that 8 nothing in this representation shall change or be deemed to change the Company's obligations or liabilities under the federal securities laws. t. The Company has reviewed its operations to the extent and in the manner described in the Prospectus to evaluate the extent to which the business or operations of the Company will be affected by the Year 2000 Problem (that is, any significant risk that computer hardware or software applications used or relied upon by the Company will not, in the case of dates or time periods occurring after December 31, 1999, function at least as effectively as in the case of dates or time periods occurring prior to January 1, 2000); as a result of such review, the Company does not believe that (i) there are any issues related to the Company's preparedness to address the Year 2000 Problem that are of a character required to be described or referred to in the Registration Statement or Prospectus which have not been accurately described in the Registration Statement or Prospectus or (ii) the Year 2000 Problem will have a material adverse effect on the Company and its subsidiaries, taken as a whole. 2. Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, individually and not jointly, represents and warrants to and agrees with each of the Underwriters that: a. This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder. b. The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Firstar Bank, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as such Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "POWER OF ATTORNEY") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of such Selling Shareholder (if such Selling Shareholder is a corporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling 9 Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states, Section 13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and all rules and regulations promulgated by the Commission thereunder, Section 16 of the Exchange Act and all rules and regulations promulgated by the Commission thereunder and consents or waivers obtained in connection with the offer and sale of the Shares by such Selling Shareholder. c. Such Selling Shareholder has, and on the Closing Date will have, valid title to the Shares to be sold by such Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder. d. The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder. e. Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances. f. (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but, in each case, only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such 10 Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. 3. Agreements to Sell and Purchase. Each Seller, severally and not jointly, hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from such Seller at $______ a share (the "PURCHASE PRICE") the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter. On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company and the Selling Shareholders agree to sell to the Underwriters the Additional Shares, and the Underwriters shall have a one-time right to purchase, severally and not jointly, up to 600,000 Additional Shares at the Purchase Price. If the Representatives, on behalf of the Underwriters, elect to exercise such option, the Representatives shall so notify the Company and/or the Selling Shareholders, as applicable, in writing not later than 30 days after the date of the Prospectus, which notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such shares are to be purchased. Such date may be the same as the Closing Date (as defined below) but not earlier than the Closing Date nor later than ten business days after the date of such notice. In the event that less than the full amount of the option to purchase Additional Shares is exercised, the Representatives, on behalf of the Underwriters, will exercise such option pro rata among the Company and the Selling Shareholders. Additional Shares may be purchased as provided in Section 5 hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. If any Additional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Additional Shares to be purchased as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares. Each Seller hereby agrees that, without the prior written consent of Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it will not, during the period ending 90 days after the date of the Prospectus, (i) offer, pledge, sell, 11 contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder or (B) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters have been advised in writing. In addition, each Selling Shareholder, agrees that, without the prior written consent of Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it will not, during the period ending 90 days after the date of the Prospectus, make any demand for, or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. 4. Terms of Public Offering. The Sellers are advised by the Representatives that the Underwriters propose to make a public offering of their respective portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in the Representatives' judgment is advisable. The Sellers are further advised by the Representatives that the Shares are to be offered to the public initially at $______ a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected by the Representatives at a price that represents a concession not in excess of $______ a share under the Public Offering Price, and that any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $_______ a share, to any Underwriter or to certain other dealers. 5. Payment and Delivery. Payment for the Firm Shares to be sold by each Seller shall be made to such Seller in Federal or other funds immediately available in New York City against delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on _______, 1999, or at such other time on the same or such other date, not later than _______, 1999, as shall be designated in writing by the Representatives. The time and date of such payment are hereinafter referred to as the "CLOSING DATE". 12 Payment for any Additional Shares to be sold by each Seller shall be made to such Seller in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date specified in the notice described in Section 3 or at such other time on the same or on such other date, in any event not later than ___________, 1999 as shall be designated in writing by the Representatives. The time and date of such payment are hereinafter referred to as the "OPTION CLOSING DATE". Certificates for the Firm Shares and Additional Shares shall be in definitive form and registered in such names and in such denominations as the Representatives shall request in writing not later than one full business day prior to the Closing Date or the Option Closing Date, as the case may be. The certificates evidencing the Firm Shares and Additional Shares shall be delivered to the Representatives on the Closing Date or the Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Shares to the Underwriters duly paid, against payment of the Purchase Price therefor. 6. Conditions to the Underwriters' and the Selling Shareholders' Obligations. The obligations of the Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than 5:00 p.m. (New York City time) on the date hereof. The several obligations of the Underwriters and the Selling Shareholders are subject to the following further conditions: a. Subsequent to the execution and delivery of this Agreement and prior to the Closing Date: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the 13 Securities Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Representatives' judgment, is material and adverse and that makes it, in the Representatives' judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus. b. The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. c. The Underwriters shall have received on the Closing Date opinions of Paul, Hastings, Janofsky & Walker LLP, special counsel for the Company, and such other counsel for the Company (including, without limitation, the General Counsel of the Company) which is reasonably satisfactory to the Representatives, dated the Closing Date, to the effect that: (i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or 14 its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; (ii) each U.S. subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; (iii) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus; (iv) the shares of Common Stock (including the Shares to be sold by the Selling Shareholders) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable; (v) all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and, based solely on a review of the stock ledger of each subsidiary, are owned of record by the Company or one of its subsidiaries; and, except for the collateral pledge of all of such shares to Lehman Commercial Paper Inc. as Syndication Agent and Administrative Agent for the Lenders to the Company's Credit Agreement, and other matters set forth in the Prospectus there are no notations in the stock ledger or on the issued and outstanding certificates regarding any liens, encumbrances, equities or claims on the holder of record's right, title and interest in and to such shares; (vi) the Shares to be sold by the 15 Company have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights; (vii) this Agreement has been duly authorized, executed and delivered by the Company; (viii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except for the registration of Shares under the Securities Act and as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares; (ix) the statements in the Prospectus under the captions "Risk Factors--Governmental Regulation of Broadcasting Industry," "Business--Federal Regulation of Radio Broadcasting," "Description of Capital Stock," and "Certain United States Tax Consequences to Non-U.S. Holders of Class A Common Stock," in each case insofar as such statements describe legal documents or federal, New York or Illinois statutes, rules and regulations, constitute a fair summary thereof; (x) to such counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company 16 or any of its subsidiaries is subject which, if determined adversely to the Company or any of its subsidiaries, might have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries; (xi) the Company and its subsidiaries validly hold the Owned Station Licenses; and, to such counsel's knowledge without investigation, the parties with which the Company and its subsidiaries have entered into programming or marketing arrangements validly hold the Programmed Station Licenses; (xii) no proceedings that would reasonably be expected to jeopardize the validity of the Owned Station Licenses are pending before or, to such counsel's knowledge, threatened by, the FCC; and to such counsel's knowledge without investigation, no proceedings that would reasonably be expected to jeopardize the validity of the Programmed Station Licenses are pending before, or threatened by, the FCC, except as set forth in the Prospectus; and (xiii) such counsel has participated in conferendirectors, officers and other representatives of the Company, the Underwriters, counsel to the Underwriters, and representatives of PricewaterhouseCoopers LLP, the independent public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus, and related matters were discussed and subject to (a) the limitation that such counsel did not independently verify the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except as otherwise expressly stated in such counsel's opinion, (b) the limitations inherent in the information available to such counsel and (c) the nature and extent of such counsel's participation in such conferences being such that such counsel is unable to assume, and does not assume, any responsibility for the accuracy, completeness or fairness of such statements (and such counsel gives the Underwriters no assurance that such counsel's procedures described in the first sentence of this paragraph would necessarily reveal matters of significance with respect to such counsel's comments), no facts have come to such counsel's attention that would lead such counsel to believe that the Registration Statement as of its 17 effective date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may indicate that in making the foregoing comments, such counsel does not intend them to include or cover the financial statements and notes thereto and other financial, numerical, accounting or statistical data contained therein or omitted therefrom as to which such counsel need not express comment. d. The Underwriters shall have received on the Closing Date an opinion of Moore & Van Allen, PLLC and Quarles & Brady LLP, counsels for the Selling Shareholders, dated the Closing Date, to the effect that: (i) this Agreement has been duly authorized, executed and delivered by or on behalf of the applicable Selling Shareholder; (ii) the execution and delivery by the applicable Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement and the Custody Agreement and Powers of Attorney of such Selling Shareholder will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of such Selling Shareholder (if such Selling Shareholder is a corporation), or, to such counsel's knowledge, any agreement or other instrument binding upon such Selling Shareholder or, to such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the 18 various states, Section 13(d) of the Securities Exchange Act and all rules and regulations promulgated by the Commission thereunder, Section 16 of the Exchange Act and all rules and regulations promulgated by the Commission thereunder and consents or waivers obtained in connection with the offer and sale of the Shares by such Selling Shareholder; (iii) the applicable Selling Shareholders has valid title to the Shares to be sold by such Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and Power of Attorney of such Selling Shareholder and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder; (iv) the Custody Agreement and the Power of Attorney of the applicable Selling Shareholder have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder; and (v) delivery of the Shares to be sold by the applicable Selling Shareholder pursuant to this Agreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances. e. The Underwriters shall have received on the Closing Date an opinion of Simpson Thacher & Bartlett, counsel for the Underwriters, dated the Closing Date, covering the matters referred to in Sections 6(c)(vi), 6(c)(vii), 6(c)(ix) (but only as to the statements in the Prospectus under "Description of Capital Stock" and "Underwriters") and 6(c)(xiii) above. With respect to Section 6(c)(xiii) above, Simpson Thacher & Bartlett may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinions of Paul, Hastings, Janofsky & Walker LLP, Moore & Van Allen, PLLC and Quarles & Brady LLP described in Sections 6(c) and 6(d) above shall be rendered to the 19 Underwriters at the request of the Company or one or more of the Selling Shareholders, as the case may be, and shall so state therein. f. The Underwriters shall have received, on each of the date hereof and the Closing Date, letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers LLP, KPMG LLP and Wipfli Ullrich Bertelson LLP, each independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Prospectus; provided that the letters delivered on the Closing Date shall use a "cut-off date" not earlier than the date hereof. g. The "lock-up" agreements, each substantially in the form of Exhibit A hereto, between the Representatives and certain shareholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date. h. The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the Option Closing Date of such documents as they may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares and other matters related to the issuance of the Additional Shares. 7. Covenants of the Company. In further consideration of the agres of the Underwriters herein contained, the Company covenants with each Underwriter and each Selling Shareholder as follows: a. To furnish to the Representatives, without charge, seven igned copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives in New York City, without charge, prior to 10:00 a.m. New York 20 City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(c) below, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. b. Before amending or supplementing the Registration Statement or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. c. If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. d. To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request; provided that in connection therewith the Company shall not be required to qualify as a corporation in that jurisdiction or to file a general consent to service of process in any jurisdiction. e. To make generally available to the Company's security holders and to the Representatives as soon as 21 practicable an earning statement covering the twelve-month period ending December 31, 2000 that satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. 8. Expenses. Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the performance of its and the Selling Shareholders' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the National Association of Securities Dealers, Inc., (v) any applicable listing or other fees, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, and travel and lodging expenses of such consultants, and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company also agrees to pay or cause to be paid an amount equal to half of the fees, disbursements and expenses of counsel for each of the Selling Shareholders in 22 connection with the Offering and the Selling Shareholders shall pay or cause to be paid the remaining balance of such amount. It is understood, however, that except as provided in this Section, Section 9 entitled "Indemnity and Contribution", and the last paragraph of Section 11 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make. It is also understood that the Underwriters agree to pay 100% of the reasonable costs of any aircraft chartered for road show participants, travel and lodging expenses, meals and breakfast and luncheons in connection with the road show and its venues. 9. Indemnity and Contribution. a. The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein. b. Each Selling Shareholder agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement, each Underwriter and each person, if any, who controls the Company or any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or 23 alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. c. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholders, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or any Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. d. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay 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, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (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. It is understood that the indemnifying party shall 24 not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons of any Underwriters, such firm shall be designated in writing by Morgan Stanley & Co. Incorporated. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholders and such control persons of any Selling Shareholders, such firm shall be designated in writing by the persons named as attorneys-in-fact for the Selling Shareholders under the Powers of Attorney. 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. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. e. To the extent the indemnification provided for in Section 9(a), 9(b) or 9(c) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable 25 by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 9(e)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Sellers on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand 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 Sellers or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. f. The Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 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 that does not take account of the equitable considerations referred to in Section 9(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, 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 Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares 26 underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. g. The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the Company and the Selling Shareholders contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, any Selling Shareholder or any person controlling any Selling Shareholder, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares. 10. Termination. This Agreement shall be subject to termination by notice given by the Representatives to the Company, if (a) after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the Representatives' judgment, is material and adverse and (b) in the case of any of the events specified in clauses 10(a)(i) through 10(a)(iv), such event, singly or together with any other such event, makes it, in the Representatives' judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus. 27 11. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. If, on the Closing Date or the Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 11 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased, and arrangements satisfactory to the Representatives, the Company and the Selling Shareholders for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter, the Company or the Selling Shareholders. In any such case either the Representatives or the relevant Sellers shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. If, on the Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase Additional Shares or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from 28 liability in respect of any default of such Underwriter under this Agreement. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of any Seller to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason any Seller shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder. 12. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. 13. Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York. 14. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement. 29 Very truly yours, Name: CUMULUS MEDIA INC. By: ______________________________ Name: Richard Weening Title: Executive Chairman The Selling Shareholders named in Schedule I hereto, acting severally By:______________________ Attorney-in-fact Accepted as of the date hereof MORGAN STANLEY & CO. INCORPORATED BEAR, STEARNS & CO. INC. GOLDMAN, SACHS & CO. PRUDENTIAL SECURITIES INCORPORATED LEHMAN BROTHERS INC. BANC OF AMERICA SECURITIES LLC, Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto. By: Morgan Stanley & Co. Incorporated By: ------------------------------- 30 SCHEDULE I SELLING SHAREHOLDER NUMBER OF FIRM SHARES TO BE SOLD State of Wisconsin Investment Board 500,000 BA Capital Company, L.P. 500,000 ------------------ Total 1,000,000 ======================== 31 SCHEDULE II UNDERWRITER NUMBER OF FIRM SHARES TO BE PURCHASED Morgan Stanley & Co. Incorporated Bear, Stearns & Co. Inc. Goldman, Sachs & Co. Prudential Securities Incorporated Lehman Brothers Inc. Banc of America Securities LLC ------------------- ===================== Total 4,000,000 ================== 32 EXHIBIT A [FORM OF LOCK-UP LETTER] November __, 1999 Morgan Stanley & Co. Incorporated Bear, Stearns & Co. Inc. Goldman, Sachs & Co. Prudential Securities Incorporated Lehman Brothers Inc. Banc of America Securities LLC, as Representatives of the several Underwriters, c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, NY 10036 Dear Sirs and Mesdames: The undersigned understands that Morgan Stanley & Co. Incorporated ("MORGAN STANLEY") proposes to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with Cumulus Media Inc., an Illinois corporation (the "COMPANY") providing for the public offering (the "PUBLIC OFFERING") by the several Underwriters, including Morgan Stanley (the "UNDERWRITERS") of 4,000,000 shares (the "SHARES") of the Class A Common Stock, par value $.01 per share, of the Company (the "COMMON STOCK"). To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 90 days after the date of the final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into EX-5.1 3 OPINION OF HOLLEB & COFF 1 EXHIBIT 5.1 November 15, 1999 Cumulus Media Inc. 111 East Kilbourn Avenue, Suite 2700 Milwaukee, WI 53202 Ladies and Gentlemen: We have acted as special counsel for Cumulus Media Inc., an Illinois corporation (the "Company") in connection with the Company's Registration Statement on Form S-3, as amended (the "Registration Statement"), being filed by the Company under the Securities Act of 1933, as amended, relating to the offer and sale of up to 4,600,000 shares (the "Shares") of the Company's Class A common stock, par value $.01 per share (the "Common Stock"). Of the Shares, 300,000 are subject to an option granted to the underwriters by the Company and 300,000 are subject to an option granted to the underwriters by selling shareholders, in each case to cover over-allotments, if any. In connection with this letter, we have examined, considered and relied solely upon the following documents (collectively, the "Documents"): the Registration Statement; the Company's Amended and Restated Articles of Incorporation; the Company's Bylaws; certain resolutions of the Company's Board of Directors; a certificate of the Company's secretary; and such matters of law as we have considered necessary or appropriate for the expression of the opinions contained herein. In rendering the opinions set forth below, we have assumed without investigation the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies, and the veracity of the Documents. As to questions of fact material to the opinions hereinafter expressed, we have relied upon the representations and warranties of the Company made in the Documents. Based solely upon and subject to the Documents, and subject to the qualification set forth below, we are of the opinion that the Shares, when duly 2 delivered against payment therefor, as contemplated by the Registration Statement, will be duly authorized, validly issued, fully paid and non-assessable. This opinion letter is limited to the matters stated herein and no opinions may be implied or inferred beyond the matters expressly stated herein. The opinions expressed herein are as of the date hereof, and we assume no obligation to update or supplement such opinions to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to us under the caption "Legal Matters" in the prospectus contained in the Registration Statement. Very truly yours, /S/ HOLLEB & COFF HOLLEB & COFF -----END PRIVACY-ENHANCED MESSAGE-----