<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS
FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT
TO RULE 13d-2(a)
CUMULUS MEDIA INC.
------------------
(Name of Issuer)
Class A Common Stock, par value $.01 per share
----------------------------------------------
(Title of Class of Securities)
231082108
--------------
(CUSIP Number)
Terrence Leahy
CML Holdings, LLC
111 East Kilbourn Avenue
Suite 2700
Milwaukee, WI 53202
414-615-2800
--------------------------------------
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
June 30, 1998
------------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d- 1(b)(3) or (4), check the following box / /.
Page 1 of 10 Pages
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SCHEDULE 13D
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- ------------------- ------------------
CUSIP No. 231082108 Page 2 of 10 Pages
- ------------------- ------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CML Holdings, LLC
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)
/ /
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
1,647,422
-------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES None
BENEFICIALLY -------------------------------------------------
OWNED 9 SOLE DISPOSITIVE POWER
BY EACH
REPORTING 1,647,422
PERSON WITH -------------------------------------------------
10 SHARED DISPOSITIVE POWER
None
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,647,422
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.5%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
00
- ------------------------------------------------------------------------------
</TABLE>
Page 2 of 10 Pages
<PAGE>
SCHEDULE 13D
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- ------------------- ------------------
CUSIP No. 231082108 Page 3 of 10 Pages
- ------------------- ------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
QUAESTUS Management Corporation
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
437,313
-------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF
SHARES 1, 647,422
BENEFICIALLY -------------------------------------------------
OWNED 9 SOLE DISPOSITIVE POWER
BY EACH
REPORTING 437,313
PERSON WITH -------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,647,422
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,084,735
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- ------------------------------------------------------------------------------
</TABLE>
Page 3 of 10 Pages
<PAGE>
SCHEDULE 13D
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- ------------------- ------------------
CUSIP No. 231082108 Page 4 of 10 Pages
- ------------------- ------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard W. Weening
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
None
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 1,396,772
OWNED -------------------------------------------------
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH None
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,396,772
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,396,772
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.2%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------------------------------------------------------------------------------
</TABLE>
Page 4 of 10 Pages
<PAGE>
Schedule 13D
This statement on Schedule 13D filed on behalf of the Reporting
Persons specified below pursuant to Section 13(d) of the Securities Exchange Act
of 1934.
Item i. Security and Issuer.
The class of equity securities to which this statement on Schedule
13D relates is the Class A Common Stock, $.01 par value (the "Class A Common
Stock"), of Cumulus Media Inc., a Delaware corporation (the "Issuer" or the
"Company"). The principal executive offices of the Issuer are located at 111
East Kilbourn Avenue, Suite 2700, Milwaukee, WI 53202.
Item ii. Identity and Background.
(i) CML Holdings, LLC, a Delaware limited liability company
("CML"), QUAESTUS Management Corporation, a Delaware corporation ("QMC") and
Richard W. Weening, the controller stockholder of QMC, are the reporting persons
pursuant to this Schedule 13D (the "Reporting Persons"). The managing member of
CML is QMC. The directors of QMC are Richard W. Weening, Terrence Leahy and
Charles Wright. The officers of QMC are Charles Wright (President and Chief
Executive Officer) and Terrence Leahy (Vice President).
(ii) The principal business address for each of the Reporting
Persons and the directors and officers of QMC other than Charles Wright is 111
East Kilbourn Avenue, Suite 2700, Milwaukee, WI 53202. The principal business
address for Charles Wright is 11740 North Port Washington Road, Mequon, WI
53092.
(iii) The principal business occupation of Richard W. Weening is
the Executive Chairman and Treasurer of the Issuer. The principal business
occupation of Terrence Leahy is the Secretary and General Counsel of the Issuer.
The principal business of the Issuer is radio broadcasting and the address of
the Issuer is 111 East Kilbourn Avenue, Suite 2700, Milwaukee, WI 53202. The
principal business occupation of Charles Wright is Chairman of the Fall River
Group. The principal business of the Fall River Group is brass foundry. The
principal business address of the Fall River Group is 11740 North Port
Washington Road, Mequon, WI 53092.
(iv) During the last five years, none of the Reporting Persons
(including the officers and directors of QMC) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(v) During the last five years, none of the Reporting Persons
(including the officers and directors of QMC) has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgement, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, Federal or State securities laws or finding any violation with
respect to such laws.
(vi) CML is a Delaware limited liability company. QMC is a
Delaware corporation. Richard W. Weening and all other directors and officers of
QMC are citizens of the United States.
Page 5 of 10 Pages
<PAGE>
Item iii. Source and Amount of Funds or Other Consideration.
On April 24, 1997, CML acquired 7,200 Class B Preferred Shares of
Cumulus Media, LLC, a Wisconsin limited liability company ("Media LLC"), in
exchange for all of the outstanding capital stock of Caribbean Communications
Company Limited, a corporation organized under the laws of Montserrat ("CCC").
The value of CCC shares given as consideration for the Class B Preferred Shares
was $7,200,000.
CML acquired 621.67 Class A Preferred Shares of Media LLC on
November 17, 1997 and 621.67 Class A Preferred Shares on January 21, 1998
for an aggregate purchase price of $2,000,000.
During 1997, QMC acquired 2,346 shares of common stock of Media
LLC as managing member of Media LLC.
On March 28, 1998, Cumulus Holdings, Inc., an Illinois corporation
and a wholly-owned subsidiary of Media LLC, amended its articles of
incorporation to change its name to Cumulus Media Inc. On June 25, 1998, the
Registration Statements on Forms S-1 and 8-A registering 7,598,572 shares of
Class A Common Stock of the Issuer in an initial public offering (the "IPO")
became effective. On June 30, 1998, Media LCC exchanged all 1,000 shares of
outstanding common stock of the Issuer for 176,932 shares of Class A Common
Stock, 9,955,416 shares of Class B Common Stock, par value $.01 per share (the
"Class B Common Stock"), and 2.376,277 shares of Class C Common Stock par value
$.01 per share (the "Class C Common Stock"). Media LLC was liquidated and such
shares were distributed to Media LLC's members in liquidation. In liquidation,
CML received 1,647,422 shares of Class C Common Stock and QMC received 437,313
shares of Class C Common Stock. The Class C Common Stock is convertible to Class
A Common Stock on a 1-for-1 basis, at the option of the holder and subject to
prior governmental approval.
Item iv. Purpose of Transaction.
The Reporting Persons acquired the shares of Common Stock
reported herein for investment purposes; the Reporting Person may acquire
additional shares of Common Stock or dispose of some or all of the shares of
Common Stock reported herein.
Item v. Interest in Securities of the Issuer.
(i) CML, QMC and Richard W. Weening beneficially own an
aggregate of 1,647,422, 2,084,735 and 1,396,772 shares of Class A Common Stock,
respectively, constituting 17.5%, 21.1% and 15.2%, respectively, of the total
class. All of such shares are subject to a right to acquire pursuant to the
conversion of Class C Common Stock to Class A Common Stock.
(ii) 1) CML has sole voting power and dispositive power as
to 1,647,422 shares of Class A Common Stock.
2) QMC has sole voting power and dispositive power
as to 437,313 shares of Class A Common Stock, and as the manager of CML, shares
voting and dispositive power as to the 1,647,422 shares of Class A Common Stock
held by CML.
Page 6 of 10 Pages
<PAGE>
3) Richard Weening, as the controlling stockholder
of QMC, has shared voting power and dispositive power as to 1,396,772 of the
shares of Class A Common Stock beneficially owned by CML. Because he owns 67% of
the outstanding capital stock of QMC, Mr. Weening beneficially owns 67% of the
2,084,735 shares beneficially owned by QMC.
(iii) Upon the consummation of the IPO, Richard Weening
was granted 1,000,690 options to purchase shares of Class C Common Stock. Since
such options are not exercisable within 60 days of the date hereof, the shares
of Class A Common Stock underlying the exercise of the options and the
conversion of Class C Common Stock are not beneficially owned by Mr. Weening.
Other than as described in the preceeding sentence and in Item 3 above, none of
the Reporting Persons has effected any transactions in shares of Class A Common
Stock during the past 60 days.
(iv) To the knowledge of the Reporting Persons, no other
person has the right to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of the Class A Common Stock beneficially
owned by the Reporting Persons.
(v) Not applicable.
Item vi. Contracts Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
(i) NationsBanc Capital Corporation, a Texas corporation
and a holder of Class B Common Stock ("NBCC"), the Issuer and all of the holders
of the Class C Common Stock entered into a Voting Agreement dated June 30, 1998,
(the "Voting Agreement"). The following is a summary description of other
principal terms of the Voting Agreement applicable to CML, QMC, and Richard
Weening and is subject to and qualified in its entirety by reference to the
Voting Agreement listed in Item 7 and filed as an exhibit to this Schedule
13(d). The Voting Agreement, executed concurrently with the consummation of the
IPO, provides that the holders of Class C Common Stock will elect the person
designated by NBCC as the Class C Director in the event of certain circumstances
set forth in Item 6(d) below.
(ii) Registration Rights Agreement.
The Company entered into a Registration Rights Agreement
dated June 30, 1998 (the "Registration Rights Agreement") with NBCC, the State
of Wisconsin Investment Board, Heller Equity Capital Corporation, CML and The
Northwestern Mutual Life Insurance Company (collectively, excluding CML, the
"Other Shareholders"). The following description of the Registration Rights
Amendment is subject to and qualified in its entirety by reference to the
Registration Rights Agreement, which has been listed in Item 7 and filed as an
exhibit to this Schedule 13D. CML and the Other Shareholders have been granted
the right one or more times to require the Company to file one or more
registration statements, subject to the requirements of the Registration Rights
Agreement, with the Securities and Exchange Commission (the "Commission")
registering the shares held by them. CML and the Other Shareholders of the
Company have been granted the right, subject to certain restrictions, to require
the Company to include shares held by them in any registration statements filed
by the Company with the Commission, subject to certain limited exceptions. The
Company has agreed to pay certain expenses relating to any registration of
shares effected pursuant to the Registration Rights Agreement and to indemnify
the parties thereto against certain liabilities in connection with any such
registration.
Page 7 of 10 Pages
<PAGE>
(iii) Lock-Up Agreement.
In connection with the IPO, the Company, its directors,
certain officers of the Company and certain of the shareholders of the Company
each entered into a lock-up agreement dated June 30, 1998 with the underwriters
participating in such offering. Each of the Company, its directors, certain
officers of the Company and certain shareholders have agreed, subject to certain
conditions, not to directly or indirectly, offer for sale, sell, pledge or
otherwise dispose of, any shares of Class A Common Stock (or any securities
convertible into or exercisable or exchangeable for shares of Class A Common
Stock) or enter into any swap or other derivatives transaction that transfers
any economic benefits of such Class A Common Stock for a period of 180 days
after the date of the offering, without the prior written consent of such
underwriters.
(iv) Amended and Restated Articles of Incorporation.
On June 30, 1998, in connection with the Reorganization,
the Company filed its amended and restated articles of incorporation ("articles
of incorporation"). The articles of incorporation of the Company provide, among
other things, that, all actions submitted to a vote of the Company's
shareholders are voted on by holders of Class A Common Stock and Class C Common
Stock, voting together as a single class. Holders of Class B Common Stock are
not entitled to vote, except with respect to the following corporate actions
(collectively, "Fundamental Actions"): (i) any proposed amendment to the
Company's articles of incorporation or by-laws; (ii) any proposed merger,
consolidation or other business combination, or sale, transfer or other
disposition of all or substantially all of the assets of the Company; (iii) any
proposed voluntary liquidation, dissolution or termination of the Company; and
(iv) any proposed transaction resulting in a change of control and except as set
forth below. The affirmative vote of the holders of a majority of the
outstanding shares of Class A Common Stock and Class C Common Stock, voting
together as a single class, and the affirmative vote of the holders of a class,
are required to approve any Fundamental Action; provided that such voting rights
will cease with respect to such holder of Class B Common Stock and the shares of
Class B Common Stock held by such holder shall not be included in determining
the aggregate number of shares outstanding for voting purposes, upon the failure
of any such holder (together with its affiliates) to beneficially own at least
50% of the shares held by such holder immediately prior to the consummation of
the IPO.
In addition, so long as NBCC (together with its
affiliates) continues to own not less than 50% of the shares of the Common Stock
held by NBCC immediately prior to the consummation of the IPO and upon a final
order by the Federal Communications Commission ("FCC") that the granting of the
right to NBCC to designate a director to the Board of Directors of the Company
pursuant to the Voting Agreement will not result in such holders' interest being
"attributable" under applicable FCC rules, (a) the holders of the Class C Common
Stock will be entitled to elect a director, which director shall be the NBCC
designee (the "Class C Director") to the Board of Directors of the Company and
(b) the Company may not take any of the following actions without the unanimous
vote of the Board of Directors (including the Class C Director): (i) enter into
any transaction with any affiliate of the Company or amend or otherwise modify
any existing agreement with any affiliate of the Company other than transactions
with affiliates which are on terms no less favorable to the Company than the
Company would obtain in a comparable arm's-length transaction with a person not
an affiliate of the Company and which are approved, after the disclosure of the
terms thereof, by vote of the majority of the Board of Directors (provided, that
any director which is an interested party or an affiliate of an interested party
will not be entitled to vote and will not be included in determining whether a
majority of the Board of Directors has approved the transaction); (ii) issue any
shares of Class B Common Stock or Class C Common Stock of the Company; (iii)
acquire (by purchase or otherwise) or sell,
Page 8 of 10 Pages
<PAGE>
transfer or otherwise dispose of assets having a fair market value in excess of
10% of the Company's shareholders' equity as of the last day of the preceding
fiscal quarter for which financial statements are available; or (iv) amend,
terminate or otherwise modify any of the foregoing classes (i) through (iii) or
this clause (iv) or any provision governing the voting or conversion rights of
the Class B Common Stock or the Class C Common Stock.
The articles of incorporation of the Company provide that,
so long as NBCC (together with its affiliates) continues to own not less than
50% of the shares of the Company's Common Stock held by NBCC immediately prior
to the consummation of the IPO, the Company may not, so long as the NBCC
designee is not a director, take any action with respect to the actions
described above without the affirmative vote of the holders of a majority of the
outstanding shares of Class B Common Stock, voting separately as a class.
The articles of incorporation also provide that the Board
of Directors will be required to consider in good faith any bona fide offer from
any third party to acquire any stock or assets of the Company and to pursue
diligently any transaction determined by the Board of Directors in good faith to
be in the best of interests of the Company's shareholders.
The above description of the Company's articles of
incorporation is subject to and qualified in its entirety by reference to the
articles of incorporation of the Company listed in Item 7 and filed as an
exhibit to this Schedule 13D.
Item vii. Material to be Filed as Exhibits.
(i) Voting Agreement dated June 30, 1998, by and among
NBCC, the Company, QMC, DBBC of Georgia, LLC, CML, Richard Weening and Lewis W.
Dickey, Jr.
(ii) Registration Rights Agreement dated June 30, 1998, by
and among the Company, NBCC, Heller Equity Capital Corporation, CML, The State
of Wisconsin Investment Board and The Northwestern Mutual Life Insurance
Company.
(iii) Articles of Incorporation of Cumulus Media Inc.
dated June 30, 1998.
(iv) Joint Filing Agreement dated July 9, 1998, by and
among CML, QMC and Richard W. Weening.
Page 9 of 10 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is true,
complete and correct.
KNOW ALL MEN BY THESE PRESENTS that each entity whose
signature appears below constitutes and appoints Richard W. Weening and Terrence
Leahy and each of them, as such person's true and lawful attorney-in-fact and
agent, with full power of substitution and revocation, for such person and in
such person's name, place and stead, in any way and all capacities to sign any
and all amendments to this Schedule 13D and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated: July 10, 1998
CML HOLDINGS, LLC
By QUAESTUS Management Corporation,
its Manager
By: /s/ Terrence Leahy
--------------------------------
Name: Terrence Leahy
Title: Vice President
QUAESTUS MANAGEMENT
CORPORATION
By: /s/ Terrence Leahy
--------------------------------
Name: Terrence Leahy
Title: Vice President
/s/ Richard W. Weening
--------------------------------
Richard W. Weening
Page 10 of 10 Pages
<PAGE>
Exhibit 7.1
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is made as of the ______ day of June,
1998, by and between NATIONSBANC CAPITAL CORP. ("NationsBanc"), CUMULUS MEDIA
INC., an Illinois corporation (the "Corporation"), and the undersigned holders
(the "Shareholders") of all of the issued and outstanding shares of Class C
Common Stock of the Corporation ("Class C Stock") or options to acquire Class C
Stock.
RECITALS
NationsBanc is the holder of certain shares of the common stock of the
Corporation. The Articles of Incorporation of the Corporation provide that
under certain circumstances the holders of Class C Stock shall have the right to
elect a Director of the Corporation (the "Class C Director"), and the
Shareholders have agreed with NationsBanc that such Class C Director shall,
during the period specified herein, be the person designated by NationsBanc.
Accordingly, the parties wish to set forth their agreement with respect to the
election of the Class C Director.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby promise and agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following capitalized
terms shall be defined as follows:
"AFFILIATE" shall be defined as set forth in Rule 144 promulgated under the
Securities Act of 1933, as amended.
"APPLICABLE PERIOD" shall mean the period commencing on the date of the
issuance of a final order of the Federal Communications Commission ("FCC")
that the granting of a right to NationsBanc to designate a director of the
Corporation will not result in NationsBanc's interest in the Corporation
being "attributable" under applicable FCC rules, and ending on the date
that NationsBanc (together with its Affiliates) owns less than fifty
percent (50%) of the number of shares of Common Stock held by NationsBanc
on the date hereof.
"COMMON STOCK" shall mean the Class A Common Stock, Class B Common Stock,
and Class C Common Stock of the Corporation, each with a par value per
share of $.01.
"DESIGNATED CLASS C DIRECTOR" shall initially be Robert H. Sheridan, III.
NationsBanc may, at any time and from time to time, change the Designated
Class C Director by written notice to all Shareholders (a) stating that the
then existing Class C Director (identified by name) shall no longer be the
Designated Class C Director, (b) identifying the person designated to be
the new Designated Class C Director, and (c) specifying the effective date
of such designation. If the person designated as the Designated Class C
Director is unable or unwilling to serve as the Class C Director then
NationsBanc shall
<PAGE>
promptly give written notice of a new Designated Class C Director to all
Shareholders, and until such notice is given the Shareholders shall have no
obligation to elect a Class C Director.
2. ELECTION OF DIRECTOR. Each Shareholder agrees that it shall, during the
Applicable Period:
a. appear in person or by proxy at each special meeting of the holders of
Class C Stock and each regular meeting of the shareholders of the Company
at which a Class C Director is to be elected ("Class C Meeting"), for the
purpose of obtaining a quorum;
b. at each Class C Meeting, vote, in person or by proxy, all of the
shares of Class C Stock now owned or hereafter acquired by the Shareholder
in favor of the election of the Designated Class C Director;
c. in any action by written consent of the holders of Class C Stock for
the purpose of electing a Class C Director, consent to the election of the
Designated Class C Director; and
d. not vote any of its shares of Class C Stock for, or execute any
consent to the election of, any Class C Director other than the Designated
Class C Director.
3. REVOCATION OF PROXIES. Each Shareholder hereby revokes all proxies and
powers of attorney with respect to the Class C Stock held by such Shareholder
which such Shareholder may have heretofore appointed or granted with respect to
the election of the Class C Director, and during the term hereof no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, such proxy or power of attorney shall not be effective) by
such Shareholder with respect to the election of the Class C Director. Nothing
in this Agreement shall be deemed to prohibit or limit the granting by any
Shareholder of any proxy or power of attorney for any Class C Stock for any
purpose other than the election of a Class C Director.
4. ISSUANCE OF SHARES. The Company agrees that during the Applicable Period
it shall not issue any shares of Class C Stock unless prior to the issuance of
such shares the person or entity to whom such shares of Class C Stock are to be
issued has executed a counterpart of this Agreement and any amendments hereto,
agreeing to be bound by the provisions hereof as a Shareholder hereunder, and
copies of such executed counterpart have been sent to each party hereto.
5. TERMINATION. This Agreement shall terminate immediately upon the
expiration of the Applicable Period, and upon such termination the parties
hereto shall have no further rights or obligations hereunder.
6. REMEDIES. This Agreement is a "voting agreement" as described in Section
7.70 of the Illinois Business Corporation Act of 1983, as amended. Each
Shareholder acknowledges that it may not be possible to measure in monetary
terms the damages which NationsBanc would suffer
2
<PAGE>
by reason of a failure by any Shareholder to perform such Shareholder's
obligations under this Agreement. Accordingly, should any dispute arise
concerning any Shareholder's proper performance of such Shareholder's
obligations under this Agreement, NationsBanc shall be entitled to obtain an
injunction for specific performance, or other appropriate equitable relief,
requiring such Shareholder to act in accordance with the terms hereof. Any such
equitable remedy shall be non-exclusive and may be in addition to any other
remedy to which NationsBanc may be entitled.
7. SUCCESSORS. Any Shareholder who transfers shares of Class C Stock shall,
prior to and as a condition to such transfer, (a) notify the transferee of the
existence and terms of this Agreement, and (b) obtain the execution by such
transferee of a counterpart of this Agreement and any amendments hereto,
agreeing to be bound by the provisions hereof as a Shareholder hereunder.
8. REPRESENTATION. The Corporation and the Shareholders warrant and
represent, which warranties and representations shall survive the execution
hereof, that the Shareholders own all Class C Stock and all options to acquire
Class C Stock which are issued and outstanding as of the date hereof.
9. NOTICES. Any notice required or permitted to be given or made by any party
to any other hereunder shall be in writing and shall be considered to be given
and received in all respects when hand delivered, when delivered by prepaid
express or courier delivery service, when sent by facsimile transmission
actually received by the receiving equipment, or five (5) days after deposited
in the United States mail, certified or registered mail, postage prepaid, in
each case addressed to the parties at their respective addresses set forth
opposite their signatures to this Agreement or to such changed address as any
party shall designate by proper notice to the other parties.
10. GOVERNING LAW. This Agreement and the rights and remedies of the parties
hereto shall be governed by and construed in accordance with the laws of the
State of Illinois, without regard to the conflicts of laws provisions thereof.
11. LEGEND. Each certificate representing shares of Class C Stock shall bear a
legend stating that the shares are subject to this Agreement.
12. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original but when taken together shall constitute but
one and the same document.
13. WAIVER. No waiver by any party hereto of any breach of any provision of
this Agreement shall be deemed a waiver by such party of any subsequent breach.
14. ENTIRE AGREEMENT. This Agreement contains the entire understanding between
the parties hereto with respect to the matters set forth herein and all prior
discussions, negotiations, agreements, correspondence and understandings between
the parties (whether oral or written) relating to the terms of this agreement
are merged herein and superseded hereby. No provision
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of this Agreement may be amended or modified other than by a writing signed by
the party against whom enforcement is sought.
15. INVALIDITY. If for any reason one or more of the provisions of this
Agreement are deemed by a court of competent jurisdiction to be unenforceable or
otherwise waived by operation of law, the remainder of this Agreement shall be
deemed to be valid and enforceable and shall be construed as if such invalid and
unenforceable provision were omitted.
16. HEADINGS. The paragraph headings used in this Agreement are for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date above first written.
Attn: Mr. Robert H. Sheridan, III NATIONSBANC CAPITAL CORP.
NationsBanc Capital Investors
100 North Tryon Street
NationsBanc Corporate Center,
10th Floor
NC1-007-10-04 By:_____________________________________
Charlotte, NC 28255 Robert H. Sheridan, III (title)
FAX: (704) 386-6432
Attn: Mr. Richard Weening CUMULUS MEDIA INC.
Cumulus Media Inc.
111 E. Kilbourn Avenue, Suite 2700
Milwaukee, WI 53202 By:_____________________________________
FAX: (414) 615-2880 Richard Weening, Executive Chairman
SHAREHOLDERS:
Attn: Mr. Richard Weening QUAESTUS MANAGEMENT CORPORATION
QUAESTUS Management Corporation
111 E. Kilbourn Avenue, Suite 2700
Milwaukee, WI 53202 By:_____________________________________
FAX: (414) 615-2880 Richard Weening, President
Attn: Mr. Lewis W. Dickey, Jr. DBBC OF GEORGIA, LLC
DBBC of Georgia, LLC
3060 Peachtree Road N.W.
Suite 750 By:_____________________________________
Atlanta, GA 30305 Lewis W. Dickey, Jr. (title)
FAX: (404) 688-3024
(signatures continued on next page)
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CML HOLDINGS, LLC
CML Holdings, LLC
111 E. Kilbourn Avenue, Suite 2700
Milwaukee, WI 53202 By:_____________________________________
(414) 615-2880
c/o Cumulus Media Inc.
111 E. Kilbourn Avenue, Suite 2700
Milwaukee, WI 53202
FAX: (414) 615-2880 ________________________________________
Richard Weening
c/o DBBC of Georgia, LLC
3060 Peachtree Road N.W.
Suite 750
Atlanta, GA 30305 ________________________________________
FAX: (404) 688-3024 Lewis W. Dickey, Jr.
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Exhibit 7.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of June ___, 1998 (the
"Agreement"), is made by and among Cumulus Media Inc., an Illinois
corporation (the "Company"), NationsBanc Capital Corp. ("NationsBanc"),
Heller Equity Capital Corporation ("Heller"), the State of Wisconsin
Investment Board ("SWIB") and The Northwestern Mutual Life Insurance Company
("NML"). Each of NationsBanc, Heller, SWIB and NML and their respective
transferees (as provided in Section 7(f)) shall sometimes be referred to
herein as a "Shareholder" and collectively as the "Shareholders".
R E C I T A L S:
WHEREAS, the Shareholders and Cumulus Media, LLC, a Wisconsin
limited liability company ("Media LLC"), are parties to that certain Amended
and Restated Registration Rights Agreement dated as of November 14, 1997 (the
"Media LLC Registration Rights Agreement") pursuant to which Media LLC agreed
to provide the Shareholders with certain registration rights; and
WHEREAS, Media LLC currently holds all of the issued and outstanding
common stock of the Company; and
WHEREAS, Media LLC is to be dissolved and all of the shares of
common stock of the Company held by Media LLC are to be distributed to the
Shareholders in a liquidating distribution; and
WHEREAS, the Company intends to consummate an initial public
offering of its Class A Common Stock; and
WHEREAS, the Media LLC Registration Rights Agreement contemplates
that in the event of an initial public offering of equity securities by the
Company, the Company would enter into a registration rights agreement with
the Shareholders on terms similar to those set forth in the Media LLC
Registration Rights Agreement prior to the consummation of such initial
public offering; and
WHEREAS, the Company and the Shareholders have agreed to enter into
this Registration Rights Agreement to set forth the registration rights to be
provided to the Shareholders by the Company.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
promises herein contained and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
<PAGE>
1. Definitions. The following capitalized terms have the
following meanings:
Class A Common Stock: The Class A Common Stock, $.01 par value per
share, issued by the Company.
Class B Common Stock: The Class B Common Stock, $.01 par value per
share, issued by the Company.
Class C Common Stock: The Class C Common Stock, $.01 par value per
share, issued by the Company.
Commission: The United States Securities and Exchange Commission or
any other United States federal agency administering the Securities Act or
the Exchange Act.
Common Stock: Class A Common Stock and/or Class B Common Stock
and/or Class C Common Stock and any securities issued thereafter with respect
to such Common Stock by way of a stock dividend, stock split, or in
connection with a combination of shares, recapitalization, merger, share
exchange, consolidation or similar transaction.
Exchange Act: The United States Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, as in
effect from time to time.
NASD: The National Association of Securities Dealers, Inc. and any
successor organization.
Person: An individual, corporation, partnership, limited liability
company, association, joint-stock company, trust where the interests of the
beneficiaries are evidenced by a security, unincorporated organization,
estate, governmental or political subdivision thereof or governmental agency.
Public Offering: The closing of an underwritten public offering of
Class A Common Stock, or securities convertible into or exchangeable or
exercisable for Class A Common Stock, registered with the Commission under
the Securities Act.
Registrable Securities: Shares of Class A Common Stock that (i) are
owned by any Shareholder immediately after the dissolution of Media LLC and
any securities issued thereafter with respect to such Class A Common Stock by
way of a stock dividend, stock split or in connection with a combination of
shares, recapitalization, merger, share exchange, consolidation or similar
transaction, or (ii) are issued to any Shareholder upon conversion of any
Class B Common Stock owned by such Shareholder immediately after the
dissolution of Media LLC (or upon conversion of any Class C Common Stock
received by such Shareholder upon conversion of any Class B Common Stock
owned by such Shareholder immediately after the dissolution of Media LLC),
and any securities issued thereafter with respect to such Class B Common
Stock or Class C Common Stock by way of a stock dividend, stock split or in
connection with a combination of shares, recapitalization, merger, share
exchange, consolidation or similar transaction.
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Registration Statement: A registration statement provided for in
Section 6 of the Securities Act under which securities are registered under
the Securities Act, together with any preliminary, final or summary
prospectus contained therein, any amendment or supplement thereto, and any
document incorporated by reference therein.
Securities Act: The United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect from time to time.
Terms defined in the Exchange Act or the Securities Act and not otherwise
defined herein have the meanings herein as therein defined.
2. Demand Registration.
(a) Right to Demand. After the date of the initial Public
Offering, or, if earlier, the date on which the Company first becomes subject to
the reporting obligations under Section 13(a) of the Exchange Act, the holders
of Registrable Securities shall have the right, exercisable by written notice to
the Company signed by (i) Person(s) holding more than 25% of the Registrable
Securities outstanding in the case of the first notice, (ii) in the case of the
second notice, Person(s) holding more than 25% of the Registrable Securities
outstanding, excluding Registrable Securities held by the Person(s) initiating
the first notice, and (iii) in the case of the third notice, Person(s) holding
more than 20% of the Registrable Securities, excluding Registrable Securities
held by Person(s) initiating the first or second notice, to request that the
Company effect the registration under the Securities Act of all or part of such
Person(s)' Registrable Securities (a "Demand Registration"); provided, however,
that excluding any Demand Registration under Section 2(d) hereof, the holders of
Registrable Securities shall only have the right to make three (3) requests for
a Demand Registration. Upon receipt of such notice, the Company shall, as
expeditiously as reasonably possible and in any event, within ten (10) days of
receipt of such notice, give written notice of such Demand Registration to all
registered holders of Registrable Securities, and shall use all commercially
reasonable efforts to effect all such registrations under the Securities Act
(including, without limitation, the execution of an undertaking to file
post-effective amendments and appropriate qualifications and approvals under the
laws and regulations of any governmental agencies and authorities applicable to
the Company, including the relevant blue sky or other state securities laws) of:
(i) the Registrable Securities that the Company has been
requested to register as specified in the demand given pursuant to this
Section 2(a) (including, without limitation, an offering on a delayed
or continuous basis pursuant to Rule 415 (or any successor rule to
similar effect) under the Securities Act); and
(ii) all other Registrable Securities that the Company has
been requested to register by the holders thereof, by written request
given to the Company within thirty (30) days after the giving of such
written notice by the Company,
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all to the extent required to permit the disposition of the Registrable
Securities so to be registered.
(b) Selection of Underwriters. The underwriters of any
underwritten offering pursuant to a Demand Registration shall be selected by
the Company, subject, however, to the approval of the holders of Registrable
Securities participating in such Demand Registration, which approval shall
not be unreasonably withheld; provided, however, that the holders of the
Registrable Securities shall not be required to pursue an underwritten
offering upon exercise of the Demand Registration.
(c) Participation in Demand Registrations. If the
managing underwriter advises the Company in writing, with a copy to the
Shareholders that, in its opinion, the number of Registrable Securities
requested to be included in a Demand Registration exceeds what can be sold in
such offering without a material adverse effect on the offering, then the
Company will advise the Shareholders and will include in such Demand
Registration up to the maximum number of Registrable Securities requested to
be included in such Demand Registration which the managing underwriter
advises the Company can be sold in such offering and such Registrable
Securities shall be allocated among the holders of Registrable Securities who
have requested to be included in such Demand Registration, pro rata among
such Persons on the basis of the number of Registrable Securities requested
to be included in such Registration. If any holder of Registrable Securities
disapproves of the number of reduced Registrable Securities that can be
included on behalf of such holder, he may elect to withdraw therefrom by
written notice to the Company, the underwriter and the other Shareholders.
(d) Additional Demand Registrations.
(i) If the Company effects the registration of less than all
of the Registrable Securities requested to be included in a Demand
Registration under Subsection 2(a) solely as a result of the operation
of Subsection 2(c), the holders of such Registrable Securities may at
any time request an additional Demand Registration with respect to such
Registrable Securities (which Demand shall not count as the second or
third Demand Right contemplated in Section 2(a)), provided that at
least six (6) months have elapsed since the effective date of the most
recent Demand Registration. Any such Demand Registration shall be
requested and effected in the manner and subject to the procedures that
applied with respect to the Demand Registration which was the subject
of the cutback in Subsection 2(c).
(ii) If the no-action request being submitted by Media LLC to
the Commission results in a finding that NationsBanc is unable to
"tack" the holding period of Media LLC to its own holding period with
respect to the shares of Common Stock distributed to NationsBanc upon
dissolution of Media LLC, then NationsBanc shall have the right,
exercisable by written notice to the Company and in addition to any
rights provided under Section 2(a) hereof, to request that the Company
effect the registration under the Securities Act of all or part of the
Registrable Securities held by NationsBanc; provided, however, that
NationsBanc shall only have the right to make one (1) request for an
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<PAGE>
additional Demand Registration under this Section 2(d)(ii). Upon
receipt of such notice, the Company shall, as expeditiously as
reasonably possible and in any event within ten (10) days of receipt of
such notice, give written notice of such additional Demand Registration
to all other registered holders of Registrable Securities, and shall
use all commercially reasonable efforts to effect all such
registrations under the Securities Act (including, without limitation,
the execution of an undertaking to file post-effective amendments and
appropriate qualifications and approvals under the laws and regulations
of any governmental agencies and authorities applicable to the Company,
including the relevant blue sky or the state securities laws) of (x)
the Registrable Securities that the Company has been requested to
register as specified in the demand given by NationsBanc pursuant to
this Section 2(d)(ii); and (y) all other Registrable Securities that
the Company has been requested to register by the other holders of
Registrable Securities, by written request given to the Company within
thirty (30) days after the giving of such written notice by the
Company, all to the extent required to permit the disposition of the
Registrable Securities so to be registered. The underwriters shall be
selected in accordance with Section 2(b). If the managing underwriter
advises the Company in writing that, in its opinion, the number of
Registrable Securities requested to be included in such additional
Demand Registration exceeds what can be sold in such offering without a
material adverse effect on the offering, then the Company will advise
the Shareholders and will include in such Demand Registration up to the
maximum number of Registrable Securities requested to be included in
such Demand Registration which the managing underwriter advises the
Company can be sold at such offering and such Registrable Securities
shall be allocated first to NationsBanc to the extent set forth in its
notice of Demand Registration and second, among the holders of
Registrable Securities other than NationsBanc who have requested to be
included in such Demand Registration, pro rata among such persons on
the basis of the number of Registrable Securities requested to be
included in such registration. If the no-action request submitted to
the Commission results in a finding that NationsBanc may tack the
holding period of Media LLC to its own holding period with respect to
the shares of Company Common Stock received upon dissolution of Media
LLC, the provisions of this Section 2(d)(ii) shall be null and void and
of no force or effect.
(e) Restrictions on Demand Registrations. The Company may
postpone for up to (but not exceeding) six (6) months the filing or the
effectiveness of a Registration Statement for a Demand Registration, whether
pursuant to Subsection 2(a) or 2(d), if the Company's Board of Directors
determines that such Demand Registration would reasonably be expected to have an
adverse effect on any proposal or plan by the Company or any of its subsidiaries
to engage in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar transaction or
that the Demand Registration will adversely interfere with other Company events
or would require disclosure of material nonpublic information relating to the
Company which, in the reasonable opinion of the Board of Directors of the
Company, should not be disclosed; provided that (i) the Company may postpone the
filing or effectiveness of a Demand Registration Statement pursuant hereto not
more than once during any twelve consecutive month period, and (ii) the Company
may postpone or withdraw the filing or effectiveness of a Demand Registration
Statement pursuant hereto not more than twice during
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the term of this Agreement. In addition, the Company shall not be required to
comply with this Section 2 within one hundred eighty (180) days after the
effective date of an initial Public Offering or within ninety (90) days of
another Registration Statement subject to this Section 2 or Section 3. In any
such event, the holders of Registrable Securities requesting such Demand
Registration will be entitled to withdraw their request for the Demand
Registration. If the request for the Demand Registration is so withdrawn, such
Demand Registration request shall not count as a Demand Registration request
hereunder; provided, however, that the holders of Registrable Securities shall
not be permitted to request another Demand Registration until such postponement
would have ended had the request not been withdrawn. The Company shall reimburse
each holder of Registrable Securities for all costs and expenses reasonably
incurred by it in connection with a proposed and withdrawn Demand Registration.
(f) Other Registration Rights. The Company shall not,
without the prior written consent of the holders of 75% of the then
outstanding Registrable Securities, grant to any Persons the right to request
the Company to register any equity securities of the Company, or any
securities convertible or exchangeable into or exercisable for such
securities, if such rights could reasonably be expected to conflict with or
be in parity with, the registration rights of the holders of Registrable
Securities granted hereunder. The granting by the Company of registration
rights to a third party shall not be deemed to be in conflict or parity with
the registration rights of the holders of Registrable Securities granted
hereunder as long as the provisions of Section 3(c) hereof are complied with
at all times during which the piggyback registration rights provided to the
Shareholders under said Section 3 are in effect and have not been terminated
in accordance with Section 3(d) hereof.
(g) Effective Registration Statement. Before filing a
Registration Statement or any amendments or supplements thereto, the Company
will (i) furnish to the holders of Registrable Securities which are to be
included in such registration, copies of all such documents proposed to be
filed, which documents will be subject to the review of the holders and their
counsel (which review shall be conducted at the Company's expense except that
in no event shall the Company be required to pay the expenses of more than
one counsel for the holders of Registrable Securities), and (ii) give the
holders of the Registrable Securities to be included in such Registration
Statement and their representatives, at the Company's expense (except that in
no event shall the Company be required to pay the expenses of more than one
counsel for the holders of Registrable Securities), the opportunity to
conduct a reasonable investigation of the records and the business of the
Company and to participate in the preparation of any such Registration
Statement or any amendments or supplements thereto. With respect to any
registrations requested pursuant to Sections 2(a) or 2(d), the Company may
include in such registration any other equity securities of the Company,
subject to the restrictions set forth in Section 2(f). A Demand Registration
pursuant to this Section 2 shall not be deemed to have been effected (i)
unless a Registration Statement with respect thereto has become effective and
the sale of Registrable Securities contemplated thereby (if underwritten) has
been consummated (unless not consummated for any reason not due to any action
or failure to act by the Company or because of a material adverse change with
respect to the Company), or (ii) if after it has become effective, such
Demand Registration is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court
for any reason.
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3. Piggyback Registration.
(a) Right to Piggyback. If the Company at any time
proposes to register any securities under the Securities Act (other than
registrations on Form S-4 or S-8 or the equivalent thereof) with respect to a
Public Offering (whether for its own account or for the account of other
security holders) and the form of Registration Statement to be used may be
used for the registration of Registrable Securities, the Company will give
prompt written notice to all holders of Registrable Securities of its intent
to do so and the proposed method of distribution, which notice shall state
whether such registration has been initiated by the Company (a "Company
Registration") or by another Person (a "Third-Party Registration"). Within
thirty (30) days after receipt of such notice, any holder of Registrable
Securities may by written notice to the Company request the registration by
the Company under the Securities Act of Registrable Securities in connection
with such proposed registration by the Company under the Securities Act of
securities (a "Piggyback Registration"). Such written notice to the Company
shall specify the Registrable Securities intended to be disposed of by such
holders. Upon receipt of such request, the Company will use all commercially
reasonable efforts to register under the Securities Act all Registrable
Securities which the Company has been so requested to register, to the extent
requisite to permit the disposition of the Registrable Securities so to be
registered in accordance with the proposed method of distribution; provided,
however, that if at any time after giving notice of its intent to register
securities and before the effective date of the Registration Statement filed
in connection with such Piggyback Registration, the Company determines for
any reason not to register or to delay registration of such securities, the
Company may, at its election, give notice of such determination to the
holders of Registrable Securities requesting such Piggyback Registration,
and, thereupon, (i) in the case of a determination not to register, the
Company shall be relieved of its obligation to register any Registrable
Securities in connection with such Piggyback Registration (but not from its
obligation to pay registration expenses pursuant to Section 5 hereof) without
prejudice, however, to the rights of any holder(s) of Registrable Securities
entitled to do so to request that such registration be effected as a Demand
Registration under Section 2 hereof, and (ii) in the case of a determination
to delay registering, the Company may delay registering any Registrable
Securities for the same period as the delay in registering such other
securities. No registration effected under this Section 3 shall relieve the
Company of its obligation to effect any Demand Registration upon request
under Section 2 hereof.
(b) Selection of Underwriters. The underwriters, if any,
of any offering pursuant to a Piggyback Registration shall be one or more
nationally-recognized investment banking firms selected by the Company.
(c) Participation in Piggyback Registrations. If the
managing underwriter informs the Company in writing of its judgment that
including the Registrable Securities in the Piggyback Registration creates a
substantial risk that the proceeds or price per unit to be received from such
offering might be reduced or that the number of Registrable Securities to be
registered is too large to be reasonably sold, then the Company will include
in such Piggyback Registration, to the extent of the number which the Company
is so advised can be sold in such offering: first,
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all securities proposed by the Company to be sold for its own account;
second, such other securities (if any) proposed to be included as a result of
the exercise of demand registration rights by the holders thereof; third,
such Registrable Securities requested by the holders thereof to be included
in such Piggyback Registration, pro rata on the basis of the number of shares
of such Registrable Securities requested to be included in such Registration
Statement; and fourth, such other securities requested to be included therein
pro rata on the basis of the number of shares of such other securities
requested to be included in the Registration Statement.
(d) Termination of Piggyback Rights. The piggyback
registration rights provided to the Shareholders under this Section 3 shall
terminate as to any Shareholder at such time as such Shareholder is permitted
to dispose of all of its Registrable Securities in any six (6) month period
under Rule 144 of the Securities Act (including Rule 144(k)).
4. Registration Procedures.
(a) Company Covenants. Whenever the Company is hereunder
required to use all commercially reasonable efforts to effect the
registration under the Securities Act of any Registrable Securities as
provided in Section 2 or 3, the Company will:
(i) prepare and file (in the case of a Demand Registration,
within forty-five (45) days of the initial notice from the requisite
holders of Registrable Securities) with the Commission the requisite
Registration Statement to effect such registration and thereafter use
all commercially reasonable efforts to cause such Registration
Statement to become effective, provided that the Company may
discontinue any registration of its securities which are not
Registrable Securities (and, under the circumstances specified in
Subsection 3(a), its securities which are Registrable Securities) at
any time prior to the effective date of the Registration Statement
relating thereto;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such Registration Statement until the earlier of (a) such
time as all such securities have been disposed of in accordance with
the intended methods of disposition by the sellers thereof set forth in
such Registration Statement and (b) the expiration of one hundred
eighty (180) days from the date such Registration Statement first
becomes effective (exclusive of any period during which the holders of
Registrable Securities are prohibited or impaired from disposition of
Registrable Securities by reason of the occurrence of any event
described in Section 4(a)(v)(a) or (b) or 4(a) (vii)), at which time
the Company shall have the right to deregister any of such securities
which remain unsold;
(iii) furnish to each seller of Registrable Securities covered
by such Registration Statement such number of conformed copies of the
Registration Statement, and of each amendment and supplement thereto,
such number of copies of the prospectus contained in such Registration
Statement and any other prospectus filed under Rule 424
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under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents as such seller may reasonably
request;
(iv) use all commercially reasonable efforts to register or
qualify all securities covered by such Registration Statement under
such other securities or blue sky laws of jurisdictions as each seller
thereof shall reasonably request, to keep such registration or
qualification in effect for so long as the Registration Statement
remains in effect, and to take any other action which may be reasonably
necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such
seller, except that the Company shall not for any such purpose be
required to (a) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not be obligated to be
so qualified but for the requirements of this subsection; (b) subject
itself to taxation in any such jurisdiction; or (c) consent to general
service of process in any such jurisdiction;
(v) se all commercially reasonable efforts to (a) obtain the
withdrawal of any order suspending the effectiveness of such
Registration Statement or sales thereunder at the earliest possible
time and (b) cause all Registrable Securities covered by such
Registration Statement to be registered with or approved by such other
governmental agencies or authorities of United States jurisdictions as
may be necessary to enable the seller thereof to consummate the
disposition of such Registrable Securities;
(vi) in connection with any registration pursuant to this
Agreement, furnish to each seller of Registrable Securities a signed
counterpart, addressed to such seller and the underwriters, of:
(a) an opinion of counsel for the Company dated the
effective date of the Registration Statement (and dated the
closing date under any underwriting agreement), reasonably
satisfactory in form and substance to such seller, and
(b) a "comfort letter" or a "procedures letter" dated
the effective date of the Registration Statement (and dated
the date of the closing under any underwriting agreement),
signed by the independent public accountants who have audited
the Company's financial statements included in such
Registration Statement,
covering substantially the same matters with respect to such
Registration Statement and, in the case of the "comfort letter," with
respect to events subsequent to the date of such financial statements,
as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in underwritten
public offerings of securities, and, in the case of the legal opinion,
such other legal matters, and, in the case of the "comfort letter,"
such other financial matters, as such seller or the underwriter may
reasonably request;
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(vii) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, notify each seller
of Registrable Securities covered by such Registration Statement
promptly after the Company discovers that the prospectus included in
such Registration Statement as then in effect includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made, and at the request of any such seller promptly prepare and
furnish to such seller a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an 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 in the light of
the circumstances under which they were made;
(viii) otherwise use all commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission;
(ix) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration
Statement from and after a date not later than the effective date of
such Registration Statement;
(x) use all commercially reasonable efforts to list all
Registrable Securities covered by such Registration Statement on a
securities exchange on which similar securities issued by the Company
are then listed and shall take any other action necessary or advisable
to facilitate the disposition of such Registrable Securities;
(xi) use all commercially reasonable efforts to facilitate
timely preparation and delivery (under regular-way settlement
procedures) of certificates representing Registrable Securities to be
sold free of restrictions; and
(xii) take all steps reasonably necessary to assure compliance
with any applicable provisions of the Investment Company Act of 1940,
as amended, including, but not limited to, registration of the Company,
or the election on behalf of the Company to be regulated as a business
development company, under that Act.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities (which, in the case of a
non-underwritten offering, may include sales under Rule 144 under the Securities
Act) as the Company may reasonably request, in writing. Any Person participating
in any Demand Registration or Piggyback Registration must (a) agree to sell
their Registrable Securities on the basis provided in the underwriting
agreement, if any, and (b) complete and execute all documents required under
this Agreement or the underwriting agreement, if any.
Each holder of Registrable Securities agrees that upon receipt of any notice
from the Company of the happening of any event of the kind described in
subparagraph (vii) of this Subsection 4(a),
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such holder will discontinue immediately such holder's disposition of securities
pursuant to the Registration Statement until such holder receives copies of the
supplemented or amended prospectus contemplated by such subparagraph (vii) and,
if so directed by the Company, will deliver to the Company all copies, other
than permanent file copies, then in such holder's possession of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.
(b) Underwriting Agreements. The Company will enter into
an underwriting agreement with the underwriters for any underwritten offering
pursuant to a Demand Registration or Piggyback Registration if requested by
the holders of Registrable Securities and the underwriters to do so. The
underwriting agreement will contain such representations and warranties by
the Company and such other terms as are generally prevailing at such time in
underwriting agreements. The holders of Registrable Securities to be
distributed by the underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations, warranties, and other agreements by the Company to and for
the benefit of the underwriters also be made to and for the benefit of such
holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such holders of
Registrable Securities. No holder of Registrable Securities shall be required
to make representations or warranties to, or agreements with, the Company or
the underwriters other than representations, warranties or agreements
regarding such holder, such holder's Registrable Securities, such holder's
intended method of distribution and any representations required by law.
(c) Holdback Agreement. Each holder of Registrable
Securities agrees by acquisition of such holder's Common Stock not to effect
any public sale or distribution of any Registrable Securities during the
thirty (30) days prior to and the one hundred eighty (180) days after the
initial Public Offering or ninety (90) days after any other underwritten
(firm commitment or best efforts) Public Offering, Demand Registration or
Piggyback Registration has become effective, except as part of such Public
Offering, Demand Registration or Piggyback Registration, as the case may be,
unless the managing underwriter of the Public Offering, Demand Registration
or Piggyback Registration otherwise agrees to such sale or distribution.
Notwithstanding the foregoing, it is acknowledged and agreed that the
immediately preceding sentence shall not prohibit Heller or NML from
effecting any public sale or distribution of any Registrable Securities
during the one hundred eighty (180) day period after the initial Public
Offering.
(d) Preparation; Reasonable Investigation. In connection
with the preparation and filing of each Registration Statement under the
Securities Act pursuant to this Agreement, the Company will give the holders
of Registrable Securities to be registered under such Registration Statement,
the underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in preparing the Registration Statement. The
Company will also give each of such Persons such access to its books and
records and opportunities to discuss the business of the Company with the
Company's officers and independent public accountants who have certified the
Company's financial statements as shall, in the opinion of such holders' and
such under-
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writers' respective counsel, be necessary to conduct a reasonable investigation
within the meaning of the Securities Act.
(e) Rule 144. From and after the date of the initial
Public Offering, the Company will file the reports required to be filed by it
under the Securities Act and the Exchange Act to enable the holders thereof
to sell their Registrable Securities without registration under the
Securities Act and within the exemptions provided under the Securities Act by
Rule 144 or any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities, the
Company will deliver to such holder a written statement as to whether it has
complied with such requirements.
5. Registration Expenses. The Company will bear all expenses
incident to the Company's performance of or compliance with this Agreement,
including, without limitation, all registration, filing, qualifying and NASD
fees, all securities and blue sky compliance fees and expenses (including
related legal fees and disbursements and other expenses pertaining thereto),
all word processing expenses, duplicating expenses, printing expenses,
engraving expenses, messenger and delivery expenses, all Company general and
administrative expenses, all Company counsel and accountants fees and
disbursements, all special audit, financial statement and reconstruction
costs, all comfort letter costs, the reasonable fees and disbursements of one
counsel acting on behalf of the sellers of the Registrable Securities being
registered, all underwriter fees and disbursements customarily paid by
issuers or sellers of securities (including fees paid to a "qualified
independent underwriter" required by the rules of the NASD in connection with
a distribution), all "road show" expenses and allocations and the expense for
other Persons retained by the Company, but excluding discounts, commissions
or fees of underwriters, selling brokers, dealer managers, sales agents or
similar securities industry professionals relating to the distribution of
Registrable Securities and applicable transfer taxes, if any, and fees for
more than one special counsel to the sellers of Registrable Securities, which
shall be borne by the sellers of the Registrable Securities being registered
on a pro rata basis based on the number of Registrable Securities sold by
each of them or upon such other basis upon which such sellers may mutually
agree.
6. Indemnification.
(a) Indemnification by the Company. In the event of any
Demand Registration or Piggyback Registration of any Registrable Securities
under the Securities Act, the Company shall, and hereby does, indemnify and
hold harmless each seller of any Registrable Securities covered by the
Registration Statement with respect thereto, such seller's partners,
directors, trustees, officers, advisors, employees and agents, and each
Person who controls or is controlled by such seller within the meaning of the
Securities Act, against any losses, claims, damages or liabilities to which
such seller, partner, director, officer, or controlling Person, as the case
may be, may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of material fact
contained in the Registration Statement under which such Registrable
Securities were sold (including all documents incorporated therein by
reference) as originally filed or in any amend-
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ment thereto, any preliminary or final prospectus contained therein or any
amendments or supplements thereto, or an omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or a violation by the Company of
any rule or regulation promulgated pursuant to any federal, state or common
law rule, including, without limitation, the Securities Act, applicable to
the Company and relating to any action or inaction required of the Company in
connection with such registration, qualification or compliance, and the
Company will reimburse each such indemnified Person for expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided that the Company
shall not be liable in any such case for any losses, claims, damages,
liabilities (or actions or proceedings in respect thereof) or expenses which
arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made by the Company in such
Registration Statement in reliance upon and in strict conformity with
information furnished to the Company by such Person through an instrument
duly executed by such Person specifically stating that it is for use in the
preparation thereof. This indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of an indemnified party,
and shall survive the transfer of such Registrable Securities by the seller
thereof.
(b) Indemnification by the Sellers. The Company may
require, as a condition to including any Registrable Securities in any
Registration Statement, that the Company receive an undertaking satisfactory
to it from the prospective seller of such Registrable Securities, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subsection (a) of this Section 6) the Company, its directors, its
officers, and each other Person who controls the Company within the meaning
of the Securities Act, with respect to any statement or alleged statement in
or omission or alleged omission from such Registration Statement, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller specifically
stating that it is for use in the preparation of such Registration Statement.
The prospective sellers' obligation to indemnify will be several, not joint
and several, among such sellers and the liability of each such seller of
Registrable Securities shall be in proportion to the net amount received by
such seller from the sale of Registrable Securities pursuant to such
Registration Statement. Notwithstanding the foregoing, the liability of any
such seller shall not exceed an amount equal to the proceeds realized by each
such seller from the sale of Registrable Securities pursuant to such
Registration Statement. This indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company, its
directors, officers or controlling Persons, and shall survive the transfer of
such Registrable Securities by the seller thereof.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Subsection 6(a) or (b), such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to such indemnifying party of the
commencement of such action. The failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 6, except to the
extent that the indemnifying party is materially prejudiced by the failure to
give
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such notice. In case any such action is brought against an indemnified party,
the indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified
to the extent that it may wish, with counsel reasonably satisfactory to the
indemnified party, unless a conflict of interest exists between such
indemnified and indemnifying parties that would make representation by the
same counsel inappropriate in the circumstances. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable for any
settlement made by the indemnified party without its consent (which consent
will not be unreasonably withheld or delayed) or for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation and the
legal expenses (if allowed under the previous sentence). No indemnifying
party shall, without the consent of the indemnified party, consent to entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation or imposes action or limitation on action on such indemnified
party.
(d) Indemnification Payments. The indemnification
required by this Section 6 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills
are received or expense, loss, damage or liability is incurred upon
submission of reasonably sufficient documentation that such expenses have
been incurred.
(e) Contribution. If the indemnification provided for in
this Agreement shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party in respect of any loss, claim, damage, expense
or liability, or any action in respect thereof, referred to herein, then the
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as is appropriate to reflect the relative fault
of the Company and the Shareholders, respectively, with respect to the
statements or omissions which resulted in such loss, claim, damage, expense
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault of each party shall be
determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Shareholder, the
interest of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Shareholders agree that it would not be just and equitable if
contributions pursuant to this Agreement were to be determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Agreement
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 herein, a Shareholder shall
not be required to contribute any amount in excess of the amount by which the
proceeds received by the Shareholder from the sale of the Registrable
Securities pursuant to the Registration Statement exceeds the amount of any
damage which such Shareholder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
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omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act or the Exchange Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7. Miscellaneous.
(a) Effectiveness. This Agreement shall become effective
only upon the distribution by Media LLC of all shares of Common Stock of the
Company held by it to the Shareholders and the other members of Media LLC as
and to the extent provided in the Agreement Regarding Dissolution dated as of
June 29, 1998 among Cumulus Media, LLC, the Shareholders, QUAESTUS Management
Corporation, DBBC of Georgia, LLC, Richard Bonick and William Bungeroth. If,
for any reason, such dissolution has not occurred on or before July 15, 1998,
this Agreement shall be null and void and of no force or effect. Upon this
Agreement becoming effective, the Media LLC Registration Rights Agreement
shall be deemed terminated and of no further force or effect.
(b) Initial Public Offering. Subject to the terms and
provisions of the Operating Agreement, nothing in this Agreement shall
otherwise create any obligation on the part of the Company to effect an
initial Public Offering.
(c) Amendments and Waivers. This Agreement may be amended
or waived by the consent of the Company and each of the Shareholders. Each
holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Subsection 7(c), whether or
not such Registrable Securities shall have been marked to indicate such
consent.
(d) Nominees for Beneficial Owners. If Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of (i) any action by holders of
Registrable Securities pursuant to this Agreement and (ii) any determination
of number of Registrable Securities held by any holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances of such
beneficial owner's ownership of such Registrable Securities.
(e) Notices. Any consent, notice or other communication
provided for hereunder shall be in writing and shall be deemed given or made:
(i) when delivered in person; (ii) one (1) business day after delivered via
reputable overnight courier service or guaranteed next day service; or (iii)
upon confirmation of delivery when sent by facsimile transmission to a Person
at the address or facsimile number as shown in the records of the Company.
The following shall be prima facie evidence of the giving or making of any
notice in accordance with the provisions of this Section 7(e): (i) in the
case of personal delivery, an affidavit, executed by the person effecting
personal delivery, of the giving or making of such notice; (ii) in the case
of a courier service, a certificate of delivery by the courier service; and
(iii) in the case of a facsimile transmission, an electronically generated
written confirmation of the successful transmission thereof. Any notice to be
given or made to any Shareholder shall be deemed conclusively to
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<PAGE>
have been given or made, and the obligation to give such notice or report
shall be deemed conclusively to have been fully satisfied, upon sending of
such notice to the Shareholder at his address or facsimile number shown in
the records of the Company. If any notice to a Person at the address of such
Person appearing in the books and records of the Company is returned by the
United States Postal Service or overnight courier service marked to indicate
that the United States Postal Service or overnight courier service has been
unable to deliver it, such notice and any subsequent notices, shall be deemed
to have been duly given or made without further mailing (until such time as
such person notifies the Company of a change in his address) if they are
available for the Person at the principal office of the Company for a period
of one (1) year from the date of the giving or making of such notice.
(f) Assignment. This Agreement is personal to the parties
hereto and not assignable and may not be enforced by any subsequent holder of
securities of the Company; provided, however, that upon execution and
delivery to the Company of a commitment to be bound by the terms of this
Agreement, this Agreement may be assigned to, and may be enforced by, a
transferee of Registrable Securities, which transferee shall thereupon have
all of the rights and obligations of its transferor hereunder.
(g) Descriptive Headings. The descriptive headings of the
sections and paragraphs of this Agreement are for reference only and shall
not limit or otherwise affect the meaning hereof.
(h) Governing Law. The rights and duties of the parties
hereto under this Agreement shall be governed by the law of the State of
Wisconsin.
(i) Specific Performance. The parties hereto acknowledge
that there may be no adequate remedy at law if any party fails to perform any
of its obligations hereunder, and accordingly agree that each party, in
addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any
other party under this Agreement in accordance with the terms and conditions
of this Agreement, in any court of the United States or any state thereof
having jurisdiction.
(j) Counterparts. This Agreement may be executed in any
number of counterparts. Each counterpart is an original, but all counterparts
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CUMULUS MEDIA INC.
By: ______________________________________
Richard W. Weening, Executive Chairman
THE STATE OF WISCONSIN INVESTMENT BOARD
By: __________________________________________
Jon Vanderploeg, Portfolio Manager
NATIONSBANC CAPITAL CORP.
By: ___________________________________________
Robert H. Sheridan III, Senior Vice President
HELLER EQUITY CAPITAL CORPORATION
By: ___________________________________________
(Title)
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: ___________________________________________
(Title)
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Exhibit 7.3
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF CUMULUS MEDIA INC.
ARTICLE I (RESTATEMENT)
NAME
The name of the Corporation is Cumulus Media Inc. Cumulus Media Inc. was
incorporated on May 22, 1997 under the name Cumulus Holdings, Inc. On March 18,
1998, Articles of Amendment were filed changing the corporate name to Cumulus
Media Inc.
ARTICLE II (RESTATEMENT)
REGISTERED AGENT
AND REGISTERED OFFICE
The registered agent of the Corporation is William Bungeroth and the
registered office of the Corporation is located at 875 North Michigan Ave.,
Suite 3650, Chicago, IL 60611, in the county of Cook.
ARTICLE III (RESTATEMENT)
PURPOSE
The purpose or purposes for which the Corporation is organized is the
transaction of any or all lawful business for which corporations may be
incorporated under the Illinois Business Corporation Act and of any successor
provisions.
ARTICLE IV (AMENDMENT)
AUTHORIZED SHARES
The aggregate number of shares which the Corporation is authorized to issue
is 100,262,000, divided into four classes consisting of: (i) 50,000,000 shares
designated as Class A Common Stock, $.01 par value per share (hereinafter
referred to as the "Class A Common Stock"); (ii) 20,000,000 shares designated as
Class B Common Stock, $.01 par value per share (hereinafter referred to as the
"Class B Common Stock"); (iii) 30,000,000 shares designated as Class C Common
Stock, $ .01 par value per share (hereinafter referred to as the "Class C Common
Stock"), and (iv) 262,000 shares of Preferred Stock, $.01 par value per share
<PAGE>
(hereinafter referred to as the "Preferred Stock"). The Class A Common Stock,
Class B Common Stock, and Class C Common Stock shall be referred to collectively
herein as the "Common Stock".
ARTICLE V (AMENDMENT)
TERMS OF COMMON STOCK
Except with regard to voting and conversion rights, shares of Class A
Common Stock, Class B Common Stock, and Class C Common Stock are identical in
all respects. The preferences, qualifications, limitations, restrictions, and
the special or relative rights in respect of the Common Stock and the various
classes of Common Stock shall be as follows:
SECTION 1. VOTING RIGHTS.
(a) GENERAL RIGHTS. The holders of shares of Class A Common Stock shall
be entitled to one (1) vote for each share of Class A Common Stock held on the
record date therefor on any matter submitted to a vote of the shareholders of
the Corporation. Except as may be required by law or by Section 2 of Article
VII, the holders of shares of Class B Common Stock shall not be entitled to vote
on any matter submitted to a vote of the shareholders of the Corporation;
PROVIDED, HOWEVER, that this sentence is not intended to detract from or limit
the consent rights of certain holders of Class B Common Stock as set forth in
Section 1(c) of this Article V. The holders of shares of Class C Common Stock
shall be entitled to ten (10) votes for each share of Class C Common Stock held
on the record date therefor on any matter submitted to a vote of the
shareholders of the Corporation; PROVIDED, HOWEVER, that during the period of
time commencing with the date of conversion of any Class B Common Stock to Class
C Common Stock held by either NationsBanc or SWIB and ending with the date on
which NationsBanc and SWIB (together with their respective Affiliates) each
ceases to beneficially own at least five percent (5%) of the aggregate number of
shares of all classes of Common Stock held by such entity immediately prior to
the consummation of the Offering, the holders of shares of Class C Common Stock
shall be entitled to one (1) vote for each share of Class C Common Stock held on
the record date therefor on any matter submitted to a vote of the shareholders
of the Corporation.
(b) VOTING IN GENERAL. The holders of Class A Common Stock and the
holders of Class C Common Stock shall vote together, as a single class, on all
matters submitted for a vote to the shareholders of the Corporation.
(c) CONSENT TO FUNDAMENTAL ACTION. The express written consent of Consent
Right Holders holding a majority of that number of shares of Class B Common
Stock held in the aggregate by all Consent Right Holders shall be required for
the taking of any Fundamental Action. Such consent is in addition to the
approval required by Section 1(b) of this Article V. The term "Consent Right
Holder," at any given time, means a Person who owns at least one (1) share of
Class B Common Stock at such time, AND who held at least one (1) share of Class
B Common Stock immediately prior to the consummation of the Offering, AND who
(together with such Person's Affiliates) beneficially owns at such time a number
of shares of the Common Stock of
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the Corporation equal to or greater than fifty percent (50%) of the number of
shares of Common Stock held by such Person immediately prior to the consummation
of the Offering.
SECTION 2. DIVIDENDS.
After payment of the preferential amounts to which the holders of any
shares ranking prior to the Common Stock shall be entitled, the holders of
Common Stock shall be entitled to receive when, as and if declared by the Board
of Directors of the Corporation, from funds lawfully available therefor, such
dividends as may be declared by the Board of Directors of the Corporation from
time to time. When and as dividends are declared on Common Stock, the holders
of shares of each class of Common Stock will be entitled to share ratably in
such dividend according to the number of shares of Common Stock held by them;
PROVIDED, HOWEVER, that in the case of dividends or other distributions payable
on Common Stock in shares of Common Stock, including distributions pursuant to
share splits or dividends, only Class A Common Stock will be distributed with
respect to Class A Common Stock, only Class B Common Stock will be distributed
with respect to Class B Common Stock and only Class C Common Stock will be
distributed with respect to Class C Common Stock. In the event any class of
Common Stock is split, divided or combined, each other class of Common Stock
simultaneously shall be proportionately split, divided or combined.
SECTION 3. LIQUIDATION, DISSOLUTION OR WINDING-UP.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntarily or involuntarily, after payment or provision
for payment of the debts and other liabilities of the Corporation and the
preferential amounts to which the holders of any shares ranking prior to the
Common Stock in the distribution of assets shall be entitled upon liquidation,
the holders of shares of the Class A Common Stock, the Class B Common Stock and
the Class C Common Stock shall be entitled to share pro rata in the remaining
assets of the Corporation in proportion to the respective number of shares of
Common Stock held by each holder compared to the aggregate number of shares of
Common Stock outstanding.
SECTION 4. MERGER OR CONSOLIDATION.
In the event of a merger or consolidation of the Corporation, shares of
Class A Common Stock, Class B Common Stock, and Class C Common Stock shall be
treated identically, except with respect to voting and conversion rights as
specifically described in this Article V.
SECTION 5. CONVERTIBILITY AND TRANSFER.
(a) CONVERSION OF CLASS B COMMON STOCK. Each holder of Class B Common
Stock is entitled to convert at any time or times all or any part of such
holder's shares of Class B Common Stock into an equal number of shares of Class
A Common Stock or an equal number of shares of Class C Common Stock; PROVIDED,
HOWEVER, that the prior consent of any governmental authority required under any
applicable law, rule, regulation or other governmental requirement to make
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<PAGE>
such conversion lawful shall have first been obtained and PROVIDED FURTHER, that
such holder is not at the time of such conversion a Disqualified Person.
(b) CONVERSION OF CLASS C COMMON STOCK. Each holder of Class C Common
Stock is entitled to convert at any time or times all or any part of such
holder's shares of Class C Common Stock into an equal number of shares of Class
A Common Stock; PROVIDED, HOWEVER, that the prior consent of any governmental
authority required under any applicable law, rule, regulation or other
governmental requirement to make such conversion lawful shall have first been
obtained; and PROVIDED FURTHER, that such holder is not at the time of such
conversion a Disqualified Person. In the event of the death of any Principal or
the Disability of any Principal which results in termination of such Principal's
employment with the Corporation, the shares of Class C Common Stock held by such
deceased or disabled Principal or any Related Party or Affiliate of such
deceased or disabled Principal shall automatically be converted into one (1)
share of Class A Common Stock. The holder of such converted shares shall have
no further rights as a holder of Class C Common Stock with respect to such
converted shares, but shall be deemed to have become the holder of the number of
shares of Class A Common Stock into which such shares of Class C Common Stock
have converted pursuant to this Section 5(b). Such holder shall exchange the
certificates representing such converted Class C Common Stock for certificates
representing Class A Common Stock.
(c) TRANSFER OF CERTAIN SHARES.
(i) A record or beneficial owner of shares of Class B Common Stock,
or of Class C Common Stock that at any time was converted from Class B
Common Stock, may transfer such shares (whether by sale, assignment, gift,
bequest, appointment or otherwise) to any transferee; PROVIDED, HOWEVER
that (i) the prior consent of any governmental authority required under
applicable law, rule, regulation or other governmental requirement to make
such transfer lawful shall have first been obtained, and (ii) the
transferee is not a Disqualified Person. Concurrently with any such
transfer, each such transferred share of Class B Common Stock or Class C
Common Stock shall automatically be converted into one (1) share of Class A
Common Stock. The holder of such converted shares shall have no further
rights as a holder of Class B Common Stock or Class C Common Stock with
respect to such converted shares but shall be deemed to have become the
holder of the number of shares of Class A Common Stock into which such
shares of Class B Common Stock or Class C Common Stock have converted
pursuant to this Section 5(c)(i). Such holder shall exchange the
certificates representing such converted Class B Common Stock or Class C
Common Stock for certificates representing Class A Common Stock.
(ii) A record or beneficial owner of shares of Class C Common Stock
may transfer such shares (whether by sale, assignment, gift, bequest,
appointment or otherwise) to any transferee; PROVIDED, HOWEVER, that (i)
the prior consent of any governmental authority required under applicable
law, rule, regulation or other governmental requirement to make such
transfer lawful shall have first been obtained, and (ii) the transferee is
not a Disqualified Person and PROVIDED FURTHER, that if the transferee is
not an Affiliate or a Related
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<PAGE>
Party of a Principal, then, concurrently with any such transfer, each such
transferred share of Class C Common Stock shall automatically be converted
into one (1) share of Class A Common Stock. The holder of such converted
shares shall have no further rights as a holder of Class C Common Stock
with respect to such converted shares but shall be deemed to have become
the holder of the number of shares of Class A Common Stock into which such
shares of Class C Common Stock have converted pursuant to this Section
5(c)(ii). Such holder shall exchange the certificates representing such
converted Class C Common Stock for certificates representing Class A Common
Stock.
(d) CONDITION PRECEDENT TO TRANSFER OR CONVERSION. As a condition
precedent to any transfer or conversion of any shares of Class B Common Stock or
Class C Common Stock, the transferor shall give the Corporation not less than
five (5) business days prior written notice of any intended transfer or
conversion and the intended transferee or the Person who will hold the converted
shares, as applicable, shall promptly provide the Corporation with any
information reasonably requested by the Corporation to enable the Corporation to
determine whether such intended transferee or holder of converted shares is a
Disqualified Person.
(e) CONVERSION.
(i) EFFECTIVE TIME OF CONVERSION. The conversion of shares of Class
B Common Stock or Class C Common Stock, as the case may be, will be deemed to
have been effected as of the close of business on the date on which occurs the
last to occur of the following events:
(A) The certificate or certificates representing the shares of Class
B Common Stock or Class C Common Stock to be converted have been
surrendered to the principal office of the Corporation with duly executed
conversion instructions and, if applicable, transfer instructions;
(B) All information requested by the Corporation, for the purpose of
making the determination contemplated by Section 5(d) of this Article V,
has been provided to the Corporation and the Corporation has determined
that the intended transferee is not a Disqualified Person; and
(C) All consents contemplated by Section 5(c)(i) of this Article V
have been obtained and evidence thereof satisfactory to the Corporation has
been provided to the Corporation.
At such time as such conversion has been effected, the rights of the holder of
such shares will cease and the Person or Persons in whose name or names any
certificate or certificates for shares of Class C Common Stock or Class A Common
Stock are to be issued upon such conversion will be deemed to have become the
holder or holders of record of the shares of the Class C Common Stock or the
Class A Common Stock so issuable by reason of the conversion.
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(ii) DELIVERIES UPON CONVERSION. As soon as possible after a
conversion has been effected (but in any event within three (3) business days),
the Corporation will deliver to the converting holder:
(A) a certificate or certificates representing the number of
shares of Class A Common Stock or Class C Common Stock issuable by reason
of such conversion in such name or names and such denominations as the
converting holder has specified; and
(B) a certificate representing any shares of Class B Common
Stock or Class C Common Stock which were represented by the certificate or
certificates delivered to the Corporation in connection with such
conversion but which were not converted.
(iii) NO CHARGES. The issuance of certificates for shares of Class A
Common Stock or Class C Common Stock upon conversion of Class B Common Stock or
Class C Common Stock will be made without charge to the holders of such Common
Stock for any issuance tax in respect of such issuance or other costs incurred
by the Corporation in connection with such conversion and the related issuance
of shares of Class A Common Stock or Class C Common Stock, except for any
transfer taxes that may be payable if certificates are to be issued in a name
other than that in which the surrendered certificate is registered. Upon
conversion of a share of Class B Common Stock or Class C Common Stock, the
Corporation will take all such actions as are necessary in order to ensure that
the Class A Common Stock or Class C Common Stock issued or issuable with respect
to such conversion will be validly issued, fully paid and nonassessable.
(iv) NO ADVERSE ACTION. The Corporation will not close its books
against the transfer of Class A Common Stock or Class C Common Stock issued or
issuable upon conversion of Class B Common Stock or Class C Common Stock in any
manner which interferes with the timely conversion of Class B Common Stock or
Class C Common Stock.
(v) SUFFICIENT SHARES. The Corporation shall at all times have
authorized, reserved and set aside a sufficient number of shares of Class A
Common Stock and Class C Common Stock for the conversion of all shares of Class
B Common Stock then outstanding. The Corporation shall at all times have
authorized, reserved and set aside a sufficient number of shares of Class A
Common Stock for the conversion of all shares of Class C Common Stock then
outstanding.
SECTION 6. DISQUALIFIED PERSON.
In event that a Person is or becomes a Disqualified Person, such Person
shall promptly take any and all actions necessary or required by the FCC to
cause such Person to cease being a Disqualified Person, including, without
limitation, (i) divesting all or a portion of such Person's interest in the
Corporation, (ii) making an application to or requesting a ruling from and/or
cooperating with the Corporation in any application to or request for a ruling
from the FCC seeking a waiver for or an approval of such ownership, (iii)
divesting itself of any ownership
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interest in any entity which together with such Person's interest in the
Corporation makes such Person a Disqualified Person, (iv) entering into a voting
trust whereby such Person's interest in the Corporation will not make such
Person a Disqualified Person, or (v) subject to any Board of Directors and/or
vote of Class B Common Stock holders required under Article VII hereof,
exchanging such Person's shares of Common Stock for Class B Common Stock.
SECTION 7. LEGEND.
Each Certificate representing shares of Common Stock shall bear a legend
setting forth the restrictions on transfer and ownership which apply to the
shares represented by such Certificate.
SECTION 8. DEFINITIONS.
For the purposes of these Articles of Incorporation, the following
capitalized terms shall have the meanings set forth below:
"ACT" shall mean the Illinois Business Corporation Act of 1983, as amended,
and any successor thereto.
"AFFILIATE" shall be defined as set forth in Rule 144 promulgated under the
Securities Act.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one transaction or a series of related
transactions, of all or substantially all of the assets of the Corporation and
its subsidiaries taken as a whole to any Person or group of related Persons (a
"Group") (as such terms are used in Section 13(d)(3) of the Exchange Act) other
than a Principal or a Related Party of a Principal, (ii) the consummation of any
transaction (including, without limitation, any purchase, sale, acquisition,
disposition, merger or consolidation) the result of which is that any Person or
Group other than a Principal or Related Party of a Principal becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and 13d-5 under the
Exchange Act) of more than fifty percent (50%) of the aggregate voting power of
all classes of capital stock of the Corporation having the right to elect
directors under ordinary circumstances, or (iii) the first day on which a
majority of the members of the Board of Directors of the Corporation are not
Continuing Directors.
"CLASS A COMMON STOCK" shall be defined as set forth in Article IV.
"CLASS B COMMON STOCK" shall be defined as set forth in Article IV.
"CLASS C COMMON STOCK" shall be defined as set forth in Article IV.
"COMMON STOCK" shall be defined as set forth in Article IV.
"COMMUNICATIONS ACT" shall mean the Telecommunications Act of 1996, as
amended.
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"CONSENT RIGHT HOLDER" shall be defined as set forth in Section 1(c) of
this Article V.
"CONTINUING DIRECTORS" means, as of any date of determination, any member
of the Board of Directors of the Corporation who (i) was a member of such Board
of Directors on the date of consummation of the Offering, or (ii) was nominated
for election or elected to such Board of Directors with the approval of (x)
two-thirds (2/3) of the Continuing Directors who were members of such Board at
the time of such nomination or election, or (y) two-thirds (2/3) of those
Directors who were previously approved by Continuing Directors.
"CORPORATION" shall mean Cumulus Media Inc., an Illinois corporation.
"DIRECTOR" shall mean a member of the Board of Directors of the
Corporation.
"DISABILITY" shall mean the inability of the Principal to perform his
duties to the Corporation on account of physical or mental illness or incapacity
for a period of four and one-half (4 1/2) consecutive months, or for a period of
one hundred thirty-five (135) calendar days, whether or not consecutive, during
any three hundred sixty-five (365) day period, as a result of a condition that
is treated as a total or permanent disability under the long-term disability
insurance policy of the Corporation that covers the Principal.
A Person shall be deemed to be a "DISQUALIFIED PERSON" if, (and with
respect to any proposed conversion or transfer, after giving effect to such
proposed conversion or transfer), the Board of Directors of the Corporation in
good faith determines such Person is (or would be after giving effect to such
conversion or transfer), or such Person becomes aware that he or she is (or
would be after giving effect to such conversion or transfer), or the FCC
determines by a final order that such Person is (or would be after giving effect
to such conversion or transfer), a Person who, directly or indirectly, as a
result of ownership of Common Stock or other capital stock of the Corporation or
otherwise (i) causes (or would cause) the Corporation or any of its subsidiaries
to violate the multiple, cross-ownership, cross-interest or other rules,
regulations, policies or orders of the FCC, (ii ) would result in
disqualification of the Corporation or any of its subsidiaries as a licensee of
the FCC, or (iii) would cause the Corporation to violate the provisions with
respect to foreign ownership or voting of the Corporation or any of its
subsidiaries as set forth in Section 310(b)(3) or (4) of the Communications Act,
as applicable. Notwithstanding the foregoing, if a Person objects in good
faith to such determination by written notice to the Corporation, within ten
(10) days of notice by the Corporation that the Board of Directors of the
Corporation has determined that such Person is a Disqualified Person, the
Corporation and/or such Person shall, when appropriate, apply for a
determination by the FCC with respect thereto within ten (10) days of receipt by
the Corporation of notice of such objection. If no determination is made by the
FCC within ninety (90) days from the date of such application or if the
Corporation and the Person determine that it is inappropriate to make any
application to the FCC, the Corporation and such Person agree that such
determination shall be made by an arbitrator, mutually agreed upon by the
Corporation and such Person. Notwithstanding the foregoing, until a
determination is made by the FCC (and such determination becomes a final order)
or by the arbitrator, such Person will not be deemed a Disqualified Person.
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"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"FCC" shall mean the Federal Communications Commission.
''FUNDAMENTAL ACTION" shall mean: (i) any proposed amendment to the
Corporation's Articles of Incorporation or By-Laws (other than an amendment
required by Section 1 of Article VII hereof); (ii) any proposed merger,
consolidation or other business combination involving the Corporation, or sale,
transfer or other disposition of all or substantially all of the assets of the
Corporation; (iii) any proposed voluntary liquidation, dissolution or
termination of the Corporation; or (iv) any proposed transaction resulting in a
Change of Control.
"NATIONSBANC" shall mean NationsBanc Capital Corp.
"OFFERING" shall mean the issuance of shares of Class A Common Stock by the
Corporation pursuant to the first public distribution in which shares of Class A
Common Stock of the Corporation are listed and traded on a national stock
exchange or on the NASDAQ National Market System.
"PERSON" shall include any individual, entity, or group within the meaning
of Section 13(d)(2) of the Exchange Act.
"PREFERRED STOCK" shall be defined as set forth in Article IV.
"PRINCIPAL" means each of Richard W. Weening and Lewis W. Dickey, Jr.
"RELATED PARTY" with respect to any Principal means (a) any spouse or
immediate family member of such Principal, or (b) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners, owners
or Persons beneficially holding an eighty percent (80%) or more controlling
interest of which consist of such Principal and/or other Persons referred to in
the immediately preceding clause (a).
"RESTRICTED ACTIONS" shall be defined as any of the following actions by
the Corporation:
(a) Entering into any transaction with any Affiliate of the Corporation or
amending or otherwise modifying any existing agreement with any Affiliate of the
Corporation, other than a transaction with an Affiliate which is on terms no
less favorable to the Corporation than the Corporation would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Corporation and which is approved, after disclosure of the terms thereof, by a
vote of the majority of the Board of Directors of the Corporation (PROVIDED,
that any Director who is an interested party or an Affiliate of an interested
party to such transaction shall not be entitled to participate in such vote and
shall not be counted for the purpose of determining whether a majority of the
Board of Directors of the Corporation has approved such transaction);
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(b) Issuing any shares of Class B Common Stock, or any shares of Class C
Common Stock other than in a conversion pursuant to Section 5(a) of Article V
hereof;
(c) Acquiring (by purchase or otherwise) or selling, transferring or
otherwise disposing of assets having, at the time of disposition, a fair market
value in excess of ten percent (10%) of the Corporation's Shareholders' Equity
as of the last day of the preceding fiscal quarter for which financial
statements are available; or
(d) amending, terminating or otherwise modifying any of the foregoing
subparagraphs (a) through (c) or this subparagraph (d) or any provision of this
Article V governing the voting or conversion rights of the Class B Common Stock
or the Class C Common Stock.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHAREHOLDERS' EQUITY," as of any date, shall mean the Corporation's assets
minus its liabilities, as determined in accordance with generally accepted
accounting principles and as reflected on the Corporation's consolidated balance
sheet as of such date.
"SWIB" shall mean the State of Wisconsin Investment Board.
ARTICLE VI (AMENDMENT)
TERMS OF PREFERRED STOCK
The Preferred Stock shall be divided into and issued in one or more series.
Each series shall be so designated by the Board of Directors of the Corporation
as to distinguish the shares in such series from the shares of all other series.
The variations in the relative rights, preferences, voting powers, designations,
dividends, qualifications, limitations, and restrictions as between different
series shall be fixed and determined by resolution of the Board of Directors of
the Corporation, so far as they are not inconsistent with the provisions of
these Articles of Incorporation, and the Board of Directors of the Corporation
is hereby expressly vested with authority to establish the same by resolution.
Each such resolution so adopted by the Board of Directors is referred to herein
as a "Resolution Fixing Terms."
The following terms and provisions shall apply to all Preferred Stock and
each series thereof:
1. Preferred Stock shall be non-voting, except to the extent that
the Resolution Fixing Terms establishing a series of Preferred Stock
expressly grants voting rights to the shares in such series, and then only
to the extent of the voting rights expressly so granted.
2. Where one or more series of Preferred Stock have been granted
voting rights, the shares of Preferred Stock having voting rights upon any
given matter shall be voted as a single class, except to the extent that
the Resolution Fixing Terms establishing a series
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of Preferred Stock expressly grants such series the right to vote
separately as a series, and then only to the extent of the separate voting
rights so granted.
3. The rate of dividend, if any, or basis for determination of
dividend, if any, for shares in a series; the price at and terms and
conditions on which shares in a series may be redeemed, if any; the amount
payable upon shares in a series in the event of involuntary or voluntary
liquidation; sinking fund provisions for shares in a series, if any; the
terms and conditions on which shares in a series may be converted, if any;
and the voting rights of shares in a series, if any, shall each be set
forth in the Resolution Fixing Terms for such series.
4. There shall be no variations between shares of different series
of Preferred Stock except to the extent that such variations are
permissible under the Act and are expressly set forth in the respective
Resolutions Fixing Terms establishing such series.
5. Dividends payable to holders of shares of any series of Preferred
Stock shall have priority over dividends payable to holders of shares of
any class of Common Stock. As among shares of Preferred Stock issued in
different series, dividends payable upon shares of any series of Preferred
Stock shall be of equal priority with dividends payable upon shares of any
other series of Preferred Stock.
6. Amounts payable to holders of shares of any series of Preferred
Stock in any liquidation (voluntary or involuntary), dissolution or winding
up of the Corporation shall have priority over amounts payable to holders
of shares of any class of Common Stock. As among shares of Preferred Stock
issued in different series, amounts payable to holders of shares of any
series of Preferred Stock in any liquidation (voluntary or involuntary),
dissolution or winding up of the Corporation shall have equal priority with
amounts payable to holders of shares of any other series of Preferred
Stock.
ARTICLE VII (AMENDMENT)
CERTAIN RIGHTS AND OBLIGATIONS
APPLICABLE ONLY DURING NATIONSBANC'S OWNERSHIP
SECTION 1. RESTRICTED ACTIONS.
Upon the day of issuance ("Order Date") of a final order of the FCC that
the granting of a right to NationsBanc to designate a Director of the
Corporation pursuant to a shareholders agreement with the holders of Class C
Common Stock will not result in NationsBanc's interest being "attributable"
under applicable FCC rules, and for so long thereafter ("Applicable Period") as
NationsBanc (together with its Affiliates) continues to own not less than fifty
percent (50%) of the number of shares of Common Stock held by NationsBanc
immediately prior to the Offering:
(a) the holders of Class C Common Stock shall have the right, voting
as a class, to elect one (1) Director (the "Class C Director"); and
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(b) the Corporation shall not take any Restricted Action without the
unanimous vote of the Board of Directors of the Corporation.
The right of the holders of the Class C Common Stock to elect the Class C
Director may be exercised initially either at a special meeting of the holders
of Class C Common Stock called as hereafter provided or at any annual meeting of
shareholders held for the purposes of electing directors and thereafter at such
annual meeting or by the written consent of the holders of Class C Common Stock,
until the expiration of the Applicable Period. Effective on the Order Date, the
number of Directors constituting the Board of Directors of the Corporation shall
be increased by one (1) without the necessity of any further action by the
shareholders or the Board of Directors of the Corporation, and the By-Laws shall
be deemed amended so to increase the number of members of the Board of Directors
effective on the Order Date. Upon the termination of the Applicable Period, the
term of office of the Class C Director shall terminate immediately and the
number of Directors constituting the Board of Directors of the Corporation shall
be reduced by one (1) without the necessity of any further action by the
shareholders or the Board of Directors of the Corporation, and the By-Laws shall
be deemed amended so to decrease the number of members of the Board of Directors
effective as of the date of termination of the Applicable Period.
At any time after the Order Date, if such rights to elect a Class C
Director shall not already have been initially exercised, a proper officer of
the Company shall, upon the written request of holders of record of ten percent
(10%) or more of the shares of Class C Common Stock then outstanding, addressed
to the Secretary of the Corporation, call a special meeting of holders of Class
C Common Stock. Such meeting shall be held at the earliest practicable date
based upon the number of days of notice required for annual meetings of
stockholders at the place designated for holding annual meetings of stockholders
of the Corporation or, if none, at a place designated by the Secretary of the
Corporation. If such meeting shall not be called by the officers of the
Corporation within thirty (30) days after the personal service of such written
request upon the Secretary of the Corporation, or within thirty (30) days after
mailing the same within the United States, by registered mail, addressed to the
Secretary of the Corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal authorities), then the
holders of record of ten percent (10%) or more of the shares of Class C Common
Stock then outstanding may designate in writing any holder of Class C Common
Stock to call such meeting at the expense of the Corporation, and such meeting
may be called by such person so designated upon the number of days of notice
required for annual meetings of stockholders and shall be held at the place
designated for holding annual meetings of the stockholders of the Corporation
or, if none, at a place designated by such holder. Any holder of Class C Common
Stock that would be entitled to vote at such meeting shall have access to the
stock books of the Corporation for the purpose of causing a meeting of holders
of Class C Common Stock to be called pursuant to the provisions of this Section
1. Notwithstanding the provisions of this section, however, no such special
meeting shall be called if any such request is received less than seventy (70)
days before the date fixed for the next ensuing annual or special meeting of
stockholders. Any action required hereunder to elect a Class C Director may be
taken without a meeting if a consent in writing, setting forth the name of the
director to be elected, shall be signed by all of the holders of Class C
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Common Stock outstanding and entitled to vote on the election of the Class C
Director. Such consent shall have the same force and effect as the unanimous
vote of the holders of the Class C Common Stock.
In case of any vacancy occurring with respect to the Class C Director, such
vacancy may be filled only by the affirmative vote of the holders of a majority
of the then outstanding shares of Class C Common Stock at a special meeting
called as provided above or pursuant to a written consent as provided above.
SECTION 2. VOTE OF CLASS B COMMON STOCK HOLDERS.
So long as NationsBanc (together with its Affiliates) continues to own not
less than fifty percent (50%) of the number of shares of Common Stock held by
NationsBanc immediately prior to the consummation of the Offering, the
Corporation may not take any Restricted Action unless EITHER (a) the membership
of the Board of Directors includes a Class C Director and the Class C Director
voted in favor of the Restricted Action, OR (b) the membership of the Board of
Directors does not at the time of approval of the Restricted Action by the Board
include a Class C Director and the Restricted Action has been approved by the
affirmative vote or consent of the holders of a majority of the outstanding
shares of Class B Common Stock, voting separately as a class.
SECTION 3. EXPIRATION OF RESTRICTIONS.
The restrictions set forth in Section 1 and 2 of this Article VII shall
terminate upon expiration of the Applicable Period.
ARTICLE VIII (AMENDMENT)
MAJORITY VOTING; NO CUMULATIVE VOTING
SECTION 1. MAJORITY VOTING.
Any provision of the Act requiring, for the approval of any action of the
Corporation, a two-thirds vote of the shareholders is hereby superseded, and any
such action may (unless a greater percentage is expressly set forth in these
Articles of Incorporation for such matter) be approved by a majority of the
votes entitled to be cast by the outstanding shares entitled to vote on the
matter or, if applicable, a majority of the votes entitled to be cast by the
outstanding shares of each class or series of shares entitled to vote as a class
or series on such matter.
SECTION 2. NO CUMULATIVE VOTING.
No holder of any shares of stock of any class shall be entitled to
cumulative voting rights in any circumstances.
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ARTICLE IX (AMENDMENT)
NO PRE-EMPTIVE RIGHTS
No shareholders shall have any pre-emptive rights to acquire unissued
shares of the Corporation or securities of the Corporation convertible into or
carrying a right to subscribe to or acquire shares.
ARTICLE X (AMENDMENT)
OFFERS FROM THIRD PARTIES
The Board of Directors of the Corporation shall consider in good faith any
bona fide offer from any third party to acquire any shares of stock or assets of
the Corporation, and shall pursue diligently any transaction determined by the
Board of Directors of the Corporation in good faith to be in the best interests
of the Corporation's shareholders.
ARTICLE XI (AMENDMENT)
LIMITATION OF LIABILITY
OF DIRECTORS
No Director of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a Director,
PROVIDED, HOWEVER, that this Article IX shall not eliminate or limit the
liability of a Director (i) for any breach of the Director's duty of loyalty to
the Corporation or its shareholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) under Section 8.65 of the Act, (iv) for any transaction from which the
Director derived an improper personal benefit, or (v) for any act or omission
occurring before the effective date of these Amended and Restated Articles of
Incorporation.
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Exhibit 7.4
JOINT FILING AGREEMENT
This Joint Filing Agreement and Power of Attorney dated as of July 9, 1998 by
and among CML Holdings, LLC, QUAESTUS Management Corporation and Richard W.
Weening (collectively, the "Reporting Persons").
W I T N E S S E T H
WHEREAS, the Reporting Persons may be required to file a statement, and
amendments thereto, pursuant to Section 13(d) of the Securities Exchange Act of
1934 (the "Exchange Act") and the rules promulgated thereunder, containing the
information required by Schedule 13D, in connection with their ownership of
capital stock of Cumulus Media Inc.; and
WHEREAS, pursuant to paragraph (f) of Rule 13d-1, the undersigned desire to
satisfy any Schedule 13D filing obligation under Rule 13d-1 by a single joint
filing.
NOW, THEREFORE, in consideration of the premises, the undersigned hereto agree
as follows:
i. The undersigned agree that any Statement on Schedule 13D to which this
Agreement is attached, and any amendments to such Statement, are filed
on behalf of each one of them.
ii. This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Agreement and Power of
Attorney to be duly executed and delivered on the above indicated date.
CML HOLDINGS, LLC,
By QUAESTUS Management Corporation,
its Manager
By: /s/Terrence Leahy
----------------------
Terrence Leahy
<PAGE>
QUAESTUS MANAGEMENT CORPORATION
By: /s/ Terrence Leahy
----------------------
Terrence Leahy
/s/ Richard W. Weening
----------------------
Richard W. Weening
