SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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)
Edward A. Balogh, Jr.
100 North Tryon Street, 19th Floor
NationsBank Corporate Center
Charlotte, North Carolina 28255
(704) 386- 1792
(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 that is the
subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g),
check the following box
Note. Schedules filed in paper format shall include
a signed original and five copies of the schedule,
including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continue on following pages)
CUSIP NO. 231082108
13D
1. names of reporting persons
i.r.s. identification no. of above persons (entitiesonly)
NationsBanc Capital Corporation
2. check the appropriate box if a member of a
group*
(a)
(b) X
3. sec use only
4. source of funds* WC
5. check box if disclosure of legal proceedings is required
pursuant to it em 2( d) or 2( e)
6. citizenship or place of organization
Texas
number of shares beneficially owned by each reporting person with
7. sole voting power
0
8.shared voting power
3,371,246
9.sole dispositive power
0
10. shared dispositive power
3,371,246
11. aggregate amount beneficially owned by each
reporting person
3,371,246
12. check box if the aggregate amount in row (11)
excludes certain shares*
13. percent of class represented by amount in row (11)
17.82%
14. type of reporting person*
CO
CUSIP NO. 231082108
13D
1. names of reporting persons i.r.s. identification no. of above persons
(entities only)
NationsBank, N.A.
2. check the appropriate box if a member of a group*
(a)
(b) X
3. sec use only
4. source of funds* AF
5.check box if disclosure of legal proceedings is
required pursuant to item 2(d) or 2(e)
6.citizenship or place of organization
national association
number of shares beneficially owned by each reporting entity with
7. sole voting power
0
8.shared voting power
3,371,246
9.sole dispositive power
0
10. shared dispositive power
3,371,246
11. aggregate amount beneficially owned by each
reporting person
3,371,246
12. check box if the aggregate amount in row (11)
excludes certain shares*
13. percent of class represented by amount in row (11)
17.82%
14. type of reporting person*
BK
CUSIP NO. 231082108
13D
1. names of reporting persons i.r.s. identification no. of above persons
(entities only)
NB Holdings Corporation
2. check the appropriate box if a member of a group*
(a)
(b) X
3. sec use only
4. source of funds* AF
5.check box if disclosure of legal proceedings is required pursuant to
item 2( d) or 2( e)
6.citizenship or place of organization
Delaware
number of shares beneficially owned by each reporting person with
7. sole voting power
0
8.shared voting power
3,371,246
9.sole dispositive power
0
10. shared dispositive power
3,371,246
11. aggregate amount beneficially owned by each
reporting person
3,371,246
12. check box if the aggregate amount in row (11)
excludes certain shares*
13. percent of class represented by amount in row (11)
17.82%
14. type of reporting person*
HC
CUSIP NO. 231082108
13D
1. names of reporting persons i.r.s. identification no. of above persons
(entities only)
NationsBank Corporation
56-0906609
2. check the appropriate box if a member of a group*
(a)
(b) X
3. sec use only
4. source of funds* AF
5.check box if disclosure of legal proceedings is required pursuant to
item 2( d) or 2( e)
6.citizenship or place of organization
North Carolina
number of beneficially owned by each reporting peerson with
7. sole voting power
0
8.shared voting power
3,371,246
9.sole dispositive power
0
10. shared dispositive power
3,371,246
11. aggregate amount beneficially owned by each
reporting person
3,371,246
12. check box if the aggregate amount in row (11) excludes certain shares*
13. percent of class represented by amount in row (11)
17.82%
14. type of reporting person*
HC
Item 1. Security and Issuer.
This statement relates to the Class A Common
Stock, par value $.01 per share (the
"Class A Common Stock"), of Cumulus
Media Inc., an Illinois corporation (the "Company").
The address of the Company's principle executive
office is:
330 East Kilbourn Avenue,
Milwaukee, WI 53202.
Item 2. Identity and Background.
(a) This statement is being jointly filed by
(1) NationsBanc Capital Corporation, a Texas
corporation ("NBCC"), (2) NationsBank, N.A., a
national banking association ("NB"), (3) NB
Holdings Corporation, a Delaware corporation ("NB
Holdings"), and (4) NationsBank Corporation, a
North Carolina corporation ("NationsBank")
(NBCC, NB, NB Holdings and NationsBank,
collectively "Reporting Persons"). A list of the
directors and executive officers of the
respective Reporting Persons is attached hereto as Annex A.
(b) The address of the principal business office of each
Reporting Person is as follows:
Reporting Person Address
1. NBCC 100 North Tryon Street
NationsBank Corporate Center
Charlotte, NC 28255
2. NB 100 North Tryon Street
NationsBank Corporate Center
Charlotte, NC 28255
3. NB Holdings 100 North Tryon Street
NationsBank Corporate Center
Charlotte, NC 28255
4. NationsBank 100 North Tryon Street
NationsBank Corporate Center
Charlotte, NC 28255
(c) NBCC, a wholly-owned subsidiary of NB, is
engaged principally in the business of venture
capital investing. NB, a wholly-owned subsidiary
of NB Holdings, is engaged in the general banking
and financial services business. NB Holdings, a
whollyowned subsidiary of NationsBank, is
engaged in the general
banking and financial services business. NationsBank
is a multi-bank holding company, registered under the Bank
Holding Act of 1956, as amended, engaged in the general banking and
financial services business through its wholly-owned
subsidiaries.
(d) During the last five years,
none of the Reporting Persons, and to the knowledge of each
Reporting Person, none of the executive officers
or directors of such Reporting Person, as set
forth on Annex A, has been convicted in a
criminal proceeding
(excluding traffic violations or similar
misdemeanors).
(e) During the last five years,
none of the
Reporting Persons, and to the knowledge of each
Reporting Person, none of
the executive officers or directors of such Reporting
Person, as applicable, has been a party to a civil
proceeding of a judicial or administrative body of
competent jurisdiction as a result of which
such person was or is subject to a judgement, decree
or final order enjoining future violations of, or
prohibiting or
mandating activities subject to, Federal and
state securities laws or finding any violation with
respect to such laws.
(f) NBCC is a Texas corporation. NB is a
national banking association. NB Holdings is
a Delaware corporation. NationsBank is a
North Carolina corporation. Except as otherwise
indicated on Annex A, to the knowledge of NBCC, NB, NB
Holdings and NationsBank, each executive officer
and
director of such
Reporting Persons, as set forth on Annex A, is a
citizen
of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
On April 24, 1997, NBCC purchased from Cumulus Media,
LLC, a privately held Wisconsin limited liability company
("Media"), 2,000
Class
A
Preferred Shares of Media. NBCC paid an aggregate cash
purchase price of $2,000,000 for such Class A
Preferred Shares. On June 25, 1997, NBCC purchased
from Media 1,500 Class A Preferred Shares of Media.
NBCC paid an aggregate purchase price of $1,500,000
for such Class A Preferred Shares. On August 26,
1997, NBCC purchased from Media 6,500 Class A
Preferred Shares of Media. NBCC paid an aggregate
purchase price of $6,500,000 for such Class A
Preferred Shares. On November 17, 1997, NBCC
purchased from Media 3,246.115 Class A Preferred
Shares of Media. NBCC paid an aggregate purchase
price of $5,221,591 for such Class A Preferred
Shares. On January 20, 1998, NBCC purchased from
Media 3,246.115 Class A Preferred
Shares of Media. NBCC paid an aggregate purchase
price of $5,221,591 for such Class A Preferred
Shares. Funds for such cash purchase price were
provided from the working capital of NBCC and its
affiliates.
On March 18, 1998, Cumulus Holdings, Inc., an
Illinois corporation and a wholly-owned subsidiary of
Media, amended its articles of incorporation to
change its name to Cumulus Media Inc.,
herein referred to as the Company. Prior to the
consummation of the registered initial public
offering of
7,420,000 shares of Class A Common Stock on July 1,
1998 (the "IPO"), all of the outstanding common stock
of the Company will have been held by Media.
Immediately prior to the IPO, Media was liquidated and
the shares of the Company currently held by Media were
distributed to the members of Media (the
"Reorganization"). All of the Class A Preferred
Shares of Media held by NBCC and certain other
institutional investors prior to the Reorganization
were exchanged for shares of Class B Common Stock, par
value $.01 per share, of the Company. The Class
B Common Stock is convertible, subject to certain
restrictions, into Class A Common Stock
or Class C Common Stock, par value $.01 per share, of
the Company. The Class A Common Stock, Class B
Common Stock and
Class C Common Stock are referred to herein as "Common
Stock."
Item 4. Purpose of Transaction.
NBCC purchased the Class A Preferred Shares of Media
solely for investment purposes. As of the date of
this Statement, and as a result of the
Reorganization, NBCC is the direct beneficial owner
of 3,371,246 shares of Class B Common Stock
which represents approximately 17.82% of the shares of
common stock of the Company currently outstanding.
NBCC may acquire additional securities of the Company,
subject to
certain factors, including without limitation (i)
applicable securities laws
and governmental restrictions on the number of voting
securities NBCC may hold, (ii) market conditions and
(iii)
its assessment of the business prospects of the
Company. NBCC is continuously evaluating the business
and business prospects of the Company, and its
present and future interests in, and intentions with
respect to, the Company and may at any time decide to
dispose of any or all of the shares of the Company
currently owned by it.
Other than discussed herein, NBCC currently has no plans to effect:
(a) any extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving
the Company or any of its subsidiaries;
(b) a sale or transfer of a material amount of the
assets of the Company or any of its subsidiaries;
(c) any change in the present Board of Directors
or management of the Company, including any change
in the number or term of directors or the
filling of any vacancies of the Board of
Directors;
(d) any material change in the present
capitalization or dividend policy of the Company;
(e) any other material change in the
Company's business or corporate structure;
(f) any change in the Company's
articles of incorporation, by-laws or
instruments corresponding thereto or any other
actions which may impede the acquisition or
control of the Company by any person;
(g) the delisting of any class of securities of
the Company from a national securities exchange
or the ceasing to be authorized to be quoted in an
interdealer quotation system of a registered
national securities association;
(h) any class of equity securities of the
Company becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or
(i) any action similar to any of those
enumerated above.
NBCC intends to re-evaluate continuously its
investment in the Company and may, based on such re-
evaluation, determine at a future date to change
its current position with respect to any action
enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) After giving effect to the transactions described
in Item 5c below, NBCC is the beneficial owner of
3,371,246 shares of Class B Common Stock
representing approximately 17.82% of the shares of
the Common Stock currently outstanding. By the
terms of the Company's articles of incorporation,
NBCC may convert shares of Class B Common Stock
into shares of Class A Common Stock or Class C
Common Stock.
(b) NBCC, NB, NB Holdings and NationsBank may be
deemed to share the voting and dispositive power of
the 3,371,246 shares of Class B Common Stock owned by
NBCC by virtue of, and this form is
being filed by NB, NB Holdings and NationsBank solely
because of NB's 100% ownership interest of NBCC, NB
Holdings' 100% ownership of NB and NationsBank's 100%
ownership interest of NB Holdings.
(c) Other than the transactions described in Item 3
above, NBCC, NB, NB Holdings and NationsBank have not, and to the
knowledge of NBCC, NB, NB Holdings and NationsBank,
no director or executive officer of NBCC, NB, NB
Holdings and NationsBank has, effected any
transaction in shares of Common Stock during the
period extending from the
date hereof to the date 60 days prior to the date
hereof.
(d) To the knowledge of NBCC, NB, NB Holdings
and NationsBank, except as set forth herein, 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 B Common Stock
owned by NBCC.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandingsor Relationships With
Respect to Securities of the Issuer.
(a) Voting Agreement.
NBCC, the Company 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 the principal terms of the
Voting Agreement applicable to NBCC 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.
(b) 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 Holdings, L.L.C. and The
Northwestern Mutual Life Insurance Company
(collectively, excluding NBCC, the "Other
Shareholders"). The following description of the
Registration Rights Agreement 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. NBCC 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.
NBCC 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.
(c) 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.
(d) 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 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 majority of the outstanding shares of Class B
Common Stock, voting separately as 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,
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
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 7. Material to be Filed as Exhibits.
(a) Voting Agreement dated June 30, 1998, by and
among NBCC, the Company, Quaestus Management Corporation, DBBC of
Georgia, LLC, CML Holdings, LLC, Richard Weening and
Lewis W. Dickey, Jr.
(b) Registration Rights Agreement dated June 30,
1998, by and among Cumulus Media Inc., NBCC,
Heller Equity Capital Corporation, The State of
Wisconsin Investment Board and The Northwestern
Mutual Life Insurance Company.
(c) Lock-Up Agreement dated June 30, 1998, by and
among NBCC, Lehman Brothers Inc., Bear Stearns & Co.
Inc. and BT Alex. Brown Incorporated (as representatives of the
several U.S. Underwriters named in Schedule 1 of the
U.S. Underwriting Agreement) and Lehman
Brothers International (Europe), Bear Stearns
International Limited, BT Alex. Brown
International and Credit Lyonnais Securities (as
lead managers named in Schedule 1 of the
International Underwriting Agreement).
(d) Articles of Incorporation of Cumulus Media Inc.
dated June 30, 1998.
(e) Joint Filing Agreement dated June 30, 1998, by
and among NBCC, NB, NB Holdings and NationsBank.
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 Edward A. Balogh, Jr.
such person's true and lawful attorney-infact 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-infact and agent or his substitute or
substitutes, may lawfully do or cause to be done by
virtue thereof.
July 1, 1998
NATIONSBANC CAPITAL CORPORATION
By:/s/ Edward A. Balogh, Jr. Name: Edward A. Balogh,
Jr. Title: Treasurer
NATIONSBANK, N.A.
By:/s/ John E. Mack
Name: John E. Mack
Title: Senior Vice President
NB HOLDINGS CORPORATION
By:/s/ John E. Mack
Name: John E. Mack
Title: Senior Vice President
NATIONSBANK CORPORATION
By:/s/ John E. Mack
Name: John E. Mack
Title: Senior Vice President Annex A
NATIONSBANC CAPITAL CORPORATION
DIRECTORS AND EXECUTIVE OFFICERS AS OF
JUNE 1, 1998
Directors
Edward J. Brown III
J. Chandler Martin
William L. Maxwell
Walter W. Walker, Jr.
Officers
Title
Edward J. Brown III
Chairman
Walter W. Walker, Jr.
President
J. Travis Hain
Senior Vice President
Ann B. Hayes
Senior Vice President
Susan Newman
Senior Vice President/Tax Officer
Walker L. Poole
Senior Vice President
Robert H. Sheridan, III
Senior Vice President
George E. Morgan, III
Senior Vice President
Gary S. Williams
Senior Vice President/Tax Officer
Douglas C. Williamson
Senior Vice President
Scott H. Colvert
Vice President
Janet G. Locke
Vice President/Tax Officer
Todd A. Binkowski
Vice President
Mary-Ann Lucas
Secretary
Drew S. Palmer
Assistant Secretary
Edward A. Balogh, Jr.
Treasurer
Investment Committee Title
Walter W. Walker, Jr. Committee Member
Robert Warfield Committee Member
Address
All NBCC officers and directors
can be reached c/o:
100 North Tryon Street, 10th Floor
NationsBank Corporate Center
Charlotte, NC 28255
NATIONSBANK, N.A. DIRECTORS AND
OFFICERS
AS OF JUNE 1, 1998
Directors Title
Hugh L. McColl, Jr.
Chairman
James H. Hance, Jr. Vice
Chairman
Kenneth D. Lewis
President
Edward J. Brown III
Director
F. William Vandiver, Jr.
Director
Officers
Title
James W. Kiser
Secretary
Allison L. Gilliam
Assistant
Secretary
Mary-Ann Lucas
Assistant
Secretary
Jacqueline MacRorie
Assistant
Secretary
Address
All NB officers and directors
can be reached c/o:
100 North Tryon Street
NationsBank Corporate Center
Charlotte, NC 28255
NB HOLDINGS CORPORATION DIRECTORS AND
OFFICERS
AS OF JUNE 1, 1998
Directors
Hugh L. McColl, Jr.
James H. Hance, Jr.
Kenneth D. Lewis
Officers Title
Hugh L. McColl, Jr. Chairman of the
Board/CEO
James H. Hance, Jr. Vice
Chairman of the Board/Chief Financial
Officer Kenneth D. Lewis President
James W. Kiser Executive Vice
President/Secretary
Marc D. Oken Executive Vice
President/Chief
Accounting
Officer
Frank L. Gentry Senior Vice
President
Karin Hirtler-Garvey Senior
Vice President/Principal Accounting
Officer Charles D. Loring
Senior Vice
President
John E. Mack Senior Vice
President/Treasurer
Susan Mays Newman Senior Vice
President/Tax
Officer
Gary S. Williams Senior Vice
President/Tax Officer
Janet G. Locke Vice
President/Tax
Officer
Ann P. West Vice President
Mary-Ann Lucas Assistant
Secretary
Address
All NB Holdings officers and directors
can be reached c/o:
100 North Tryon Street
NationsBank Corporate Center
Charlotte, NC 28255
NATIONSBANK CORPORATION DIRECTORS AND
OFFICERS
AS OF JUNE 1, 1998
Ray C. Anderson Alan T. Dickson
Chairman and CEO Chairmen
Interface, Inc. Ruddick Corporation
Atlanta, GA Charlotte, NC
Dr. Rita Bornstein Paul Fulton
President Chairmen and CEO
Rollins College Bassett Furniture Industries Inc
Winter Park, FL Winston-Salem, NC
B. A. Bridgewater, Jr. James H. Hance, Jr.
Chairman, President and CEO Vice Chairman and Chief Financial Officer
Brown Group, Inc. NationsBank Corporation
St. Louis, MO Charlotte, NC
Thomas E. Capps C. Ray Holman
Chairman, President and CEO Chairman and CEO
Dominion Resources, Inc. Mallinckrodt Inc.
Richmond, VA St Louis, Mo
Alvin R. Carpenter W. W. Johnson
President and CEO Chairman, Executive Committee
CSX Transportation Inc. NationsBank Corporation
Jacksonville, FL Charlotte, NC
Charles W. Coker Kenneth D. Lewis
Chairman President
Sonoco Products Company NationsBank Corporation
Hartsville, SC Charlotte, NC
Thomas G. Cousins Hugh L. McColl, Jr.
Chairman and CEO Chief Executive Officer
Cousins Properties Incorporated NationsBank Corporation
Atlanta, Ga Charlotte, NC
Andrew B. Craig, III Russell W. Meyer, Jr.
Retired Chairman Chairman and CEO
NationsBank Corporation Cessna Aircraft Company
St, Louis Mo Wichita, Ks
Richard B Priory
Chairman and CEO
Duke Energy Corporation
Charlotte, NC
Charles E. Rice
Chairman
NationsBank Corporation
Jacksonville, Fl
John C. Slane
President
Slane Hosiery Mills, Inc.
High Point. NC
O. Temple Sloan, Jr.
Chairman
General Parts Inc.
Raliegh, NC
Meredith Spangler
Trustee and Board Member
Charlotte, NC
Albert E. Suter
Sr. Vice Chairman and
Chief Administrative Officer
Emerson Electric Co.
St. Louis MO
Ronald Townsend
Communications Consultant
Jacksonville, FL
Jackie M. Ward
President and CEO
Computer Generation Incorporated
Atlanta, GA
John A. Williams
Chairman and CEO
Post Properties, Inc.
Atlanta, GA
Virgil R. Williams
Chairman and CEO
Williams Group International, Inc.
Stone Mountain, GA
Principal Officers
Charles E. Rice
Chairman
Hugh L. McColl, Jr.
Chief Executive Officer
James H. Hance, Jr.
Vice Chairman and Chief
Financial Officer
NationsBank Corporation
Kenneth D. Lewis
President
NationsBank Corporation
F. William Vandiver, Jr.
Chairman
Corporate Risk Policy
James W. Kiser
Secretary
Address
All NationsBank officers and
directors can be reached c/o:
100 North Tryon Street
NationsBank Corporate Center
Charlotte, NC 28255
Exhibit A
VOTING AGREEMENT
THIS VOTING AGREEMENT (AAgreement@) is made as of the
30th day of June, 1998, by and between NATIONSBANC
CAPITAL CORP. (ANationsBanc@), CUMULUS MEDIA INC., an
Illinois corporation (the ACorporation@), and the
undersigned holders (the AShareholders@) of all of the
issued and outstanding shares of Class C Common Stock
of the Corporation (AClass 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: AAffiliate@ shall be defined as set forth in
Rule 144 promulgated under the Securities Act of 1933,
as amended. AApplicable Period@ shall mean the period
commencing on the date of the issuance of a final order
of the Federal Communications Commission (AFCC@) 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
Aattributable@ 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.
ACommon 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.
ADesignated 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
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 Avoting 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 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 nonexclusive 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 Common 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 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.
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 QUSTUS
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)
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.
Exhibit B REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of June
30, 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
AShareholder@ and collectively as the AShareholders@.
R E C I T A L S:
WHEREAS, the Shareholders and Cumulus Media, LLC, a
Wisconsin limited liability company (AMedia LLC@), are
parties to that certain Amended and Restated
Registration Rights Agreement dated as of November 14,
1997 (the AMedia 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:
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.
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 pre liminary, 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 ADemand 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,
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 2c, 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 2c.
(ii) If the no-action request being submitted by
Media LLC to the Commission results in a finding
that NationsBanc is unable to Atack@ 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 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 posteffective 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 noaction 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 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 3c 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. 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 ACompany
Registration@) or by another Person (a AThird-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 APiggyback
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, 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
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) use 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 Acomfort letter@ or a Aprocedures 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 Acomfort
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 Acomfort letter,@ such other
financial matters, as such seller or the underwriter may
reasonably request;
(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 regularway
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 distribu
tion 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), 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 oppor tunity 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
underwriters= 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 disburse ments customarily paid
by issuers or sellers of securities (including fees paid
to a Aqualified independent underwriter@ required by the
rules of the NASD in connection with a distribution),
all Aroad 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 amendment
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 Registra tion 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 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 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 30, 1998 among Cumulus Media, LLC, the
Shareholders, QUSTUS 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 7c, 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 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.
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) Exhibit C
LOCK-UP AGREEMENT
June 30, 1998
LEHMAN BROTHERS INC.
BEAR, STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
As Representatives of the several
U.S. Underwriters named in Schedule 1
of the U.S. Underwriting Agreement
c/o Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
LEHMAN BROTHERS INTERNATIONAL (EUROPE)
BEAR, STEARNS INTERNATIONAL LIMITED
BT ALEX. BROWN INTERNATIONAL,
division of Bankers Trust International
PLC CREDIT LYONNAIS SECURITIES
As lead Managers named in Schedule 1
of the International Underwriting
Agreement c/o Lehman Brothers
International (Europe) 29 Admiral's Court
Horselydown Lane
London SE1 2LJ England
Dear Sirs:
The undersigned beneficially owns 3,371,246 shares of Cumulus
Media Inc., an Illinois corporation (the "Company"), Class A
Common Stock, par value $.01 per share (the "Class A Common
Stock"),
including options, warrants or other securities convertible into
Class A Common Stock. The undersigned understands that Lehman
Brothers Inc., Bear, Stearns & Co. Inc. and BT Alex. Brown
Incorporated, as representatives (the "Representatives") of the
several U.S. Underwriters named in Schedule 1 of the U.S.
Underwriting Agreement referred to below, have entered into an
underwriting agreement (the "U.S. Underwriting Agreement") with
the Company and the State of Wisconsin Investment Board (the
"Selling Stockholder"), providing for the public offering of
shares of the Class A Common Stock. The undersigned also
understands that Lehman Brothers International (Europe), Bear,
Stearns International Limited, BT
Alex. Brown International, division of Bankers Trust
International PLC and Credit Lyonnais Securities, as lead
managers (the "Lead Managers") of the several International
Managers named in Schedule 1 of the International Underwriting
Agreement referred to below, have entered into an underwriting
agreement (the "International Underwriting Agreement" and,
collectively with the U.S. Underwriting Agreement, the
"Underwriting Agreements") with the Company and the Selling
Stockholder, providing for the public offering of shares of the
Class A Common Stock.
In recognition of the benefits that such offerings will
confer upon the undersigned and for other good and valuable
consideration, the undersigned agrees with each of the U.S.
Underwriters and International Managers for a period of 180
days from the date of the Underwriting Agreements, not to,
directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the
future of) any shares of Class A Common Stock or securities
convertible into or exchangeable for Class A Common Stock
(other than the Stock (as defined in the U.S. Underwriting
Agreement) or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such
shares of Class A Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by
delivery of Class A Common Stock or other securities, in cash
or otherwise, in each case without the prior written consent
of the Representatives and Lead Managers except that the
Selling Stockholder may transfer some or all of its shares of
such securities to an affiliate; provided that, simultaneously
upon consummation of such transfer such affiliate agrees in
writing to
be bound by the terms and provisions of this Agreement to the
same extent as the Selling Stockholder.
NATIONSBANC
CAPITAL
CORP.,
a Texas corporation
Robert H. Sheridan, III Senior Vice President
Exhibit D
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 AClass A Common Stock@); (ii) 20,000,000 shares
designated as Class B Common Stock, $.01 par value per share
(hereinafter referred to as the AClass B Common Stock@); (iii)
30,000,000 shares designated as Class C Common Stock, $ .01
par value per share (hereinafter referred to as the AClass C
Common Stock@), and (iv) 262,000 shares of Preferred Stock,
$.01 par value per share (hereinafter referred to as the
APreferred Stock@). The Class A Common Stock, Class B Common
Stock, and Class C Common Stock shall be referred to
collectively herein as the ACommon 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 1c 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 AConsent 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 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 distribu ted 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 liabili ties 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 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,
appoint ment 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 5c(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 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 5c(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 5c(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.
(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 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:
AAct@ shall mean the Illinois Business Corporation Act of
1983, as amended, and any successor thereto.
AAffiliate@ shall be defined as set forth in Rule 144
promulgated under the Securities Act.
AChange 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 AGroup@) (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 Abeneficial owner@ (as such term is
defined in Rule 13d-3 and 13d5 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.
AClass A Common Stock@ shall be defined as set forth in
Article IV.
AClass B Common Stock@ shall be defined as set forth in
Article IV.
AClass C Common Stock@ shall be defined as set forth in
Article IV.
ACommon Stock@ shall be defined as set forth in Article IV.
ACommunications Act@ shall mean the Telecommunications Act of
1996, as amended.
AConsent Right Holder@ shall be defined as set forth in
Section 1c of this Article V.
AContinuing 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. ACorporation@ shall mean Cumulus Media
Inc., an Illinois
corporation.
ADirector@ shall mean a member of the Board of Directors of the
Corporation.
ADisability@ 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
(4.5) 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 ADisqualified 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. AExchange Act@ shall mean
the Securities Exchange Act of 1934, as amended.
AFCC@ shall mean the Federal Communications Commission.
>>Fundamental Action@ shall mean: (i) any proposed amendment to
the Corporation=s Articles of Incorporation or ByLaws (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, trans fer 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.
ANationsBanc@ shall mean NationsBanc Capital Corp.
AOffering@ 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.
APerson@ shall include any individual, entity, or group within
the meaning of Section 13(d)(2) of the Exchange Act.
APreferred Stock@ shall be defined as set forth in Article IV.
APrincipal@ means each of Richard W. Weening and Lewis W.
Dickey, Jr.
ARelated 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).
ARestricted 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);
(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.
ASecurities Act@ shall mean the Securities Act of 1933, as
amended. AShareholders= 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.
ASWIB@ 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 AResolution 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 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 (AOrder 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 Aattributable@ under applicable FCC
rules, and for so long thereafter (AApplicable 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
AClass C Director@); and
(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 stock holders 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 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.
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.
Exhibit E
JOINT FILING AGREEMENT
Agreement dated June 30, 1998 Re: Joint Filing of Schedule
13D
In accordance with Rule 13D-1(f)(1) promulgated under the
Securities Exchange Act of 1934, as amended, the undersigned
hereby agree that:
(i) each of them is individually eligible to use the
Schedule 13D attached hereto;
(ii) the attached Schedule 13D is filed on behalf of each
of them; and
(iii) each of them is responsible for the timely filing
of such Schedule 13D and any amendments thereto, and for the
completeness and accuracy of the information therein
concerning him or itself; but none of them is responsible for
the completeness or accuracy of the information concerning
the other persons making the filing, unless he or it knows or
has reason to believe that such information is inaccurate.
NATIONSBANC CAPITAL CORPORATION
By:/s/ Edward A. Balogh, Jr. Name: Edward A. Balogh, Jr.
Title: Treasurer
NATIONSBANK, N.A.
By:/s/ John E. Mack
Name: John E. Mack
Title: Senior Vice President
NB HOLDINGS CORPORATION
By:/s/ John E. Mack
Name: John E. Mack
Title: Senior Vice President
NATIONSBANK CORPORATION
By:/s/ John E. Mack
Name: John E. Mack
Title: Senior Vice President
