VOTING AGREEMENT
EXHIBIT 2.3
Execution Copy
THIS VOTING AGREEMENT (this “Agreement”) is dated as of July 23, 2007, by and among
Cumulus Media, Inc., a Delaware corporation (the “Company”), Cloud Acquisition Corporation,
a Delaware corporation (“Parent”), and the Persons executing this Agreement as
“Contributing Stockholders” on the signature page hereto (each, a “Contributing
Stockholder” and, collectively, the “Contributing Stockholders”).
WITNESSETH
WHEREAS, simultaneously with the execution and delivery of this Agreement, Parent and the
Company have entered into an Agreement and Plan of Merger, as it may be amended, supplemented,
modified or waived from time to time (the “Merger Agreement”), which provides, among other
things, for the Merger of a subsidiary of Parent with and into the Company with the Company
surviving, upon the terms and subject to the conditions set forth therein;
WHEREAS, each Contributing Stockholder or an Affiliate controlled by such Contributing
Stockholder is the record and Beneficial Owner of, and has the sole right to vote and dispose of,
that number of Shares set forth next to such Contributing Stockholder’s name on Schedule A
hereto; and
WHEREAS, as an inducement to Parent and the Company entering into the Merger Agreement and
incurring the obligations therein, Parent and the Company have required that each Contributing
Stockholder, and each Contributing Stockholder has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises, covenants and
agreements contained in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
CERTAIN DEFINITIONS
Section 1.1 Capitalized Terms. Capitalized terms used in this Agreement and not
defined herein have the meanings ascribed to such terms in the Merger Agreement.
Section 1.2 Other Definitions. For the purposes of this Agreement:
(a) “Beneficial Owner” or “Beneficial Ownership” with respect to any
securities means having “beneficial ownership” of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act).
(b) “Expiration Time” has the meaning set forth in Section 5.1.
(c) “Owned Shares” has the meaning set forth in Section 2.1.
(d) “Shares” has the meaning ascribed thereto in the Merger Agreement, and will also
include for purposes of this Agreement all shares or other voting securities into which Shares may
be reclassified, sub-divided, consolidated or converted and any rights and benefits arising
therefrom, including any dividends or distributions of securities which may be declared in respect
of the Shares and entitled to vote in respect of the matters contemplated by Article II.
(e) “Transfer” means, with respect to a security, the sale, grant, assignment,
transfer, pledge, encumbrance, hypothecation or other disposition of such security or the
Beneficial Ownership thereof (including by operation of Law), or the entry into any Contract to
effect any of the foregoing, including, for purposes of this Agreement, the transfer or sharing of
any voting power of such security or other rights in or of such security, the granting of any proxy
with respect to such security, depositing such security into a voting trust or entering into a
voting agreement with respect to such security.
ARTICLE II
AGREEMENT TO VOTE
AGREEMENT TO VOTE
Section 2.1 Agreement to Vote. Subject to the terms and conditions hereof, each
Contributing Stockholder irrevocably and unconditionally agrees that, from and after the date
hereof and until as applicable the Expiration Time, at any meeting (whether annual or special, and
at each adjourned or postponed meeting) of the Company’s stockholders, however called, or in any
other circumstances upon which a vote or other consent or approval (including a written consent) is
sought, such Contributing Stockholder will (y) appear at such a meeting or otherwise cause all of
such Contributing Stockholder’s Shares Beneficially Owned by such Contributing Stockholder as of
the relevant time (“Owned Shares”) to be counted as present thereat for purposes of
calculating a quorum and respond to any other request by the Company for written consent, if any,
and, (z) vote, or cause to be voted, its Owned Shares in accordance with subsection (a) or (b) of
this Section 2.1, as applicable.
(a) Unless subsection (b) of this Section 2.1 is applicable, the Owned Shares shall be voted
(i) in favor of the adoption of the Merger Agreement and the approval of the transactions
contemplated thereby, including the Merger, (ii) in favor of the approval of any other matter to be
approved by the stockholders of the Company to facilitate the transactions contemplated by the
Merger Agreement, including the Merger, (iii) against any Company Acquisition Proposal or any
transaction contemplated by such Company Acquisition Proposal, (iv) against any proposal made in
opposition to, or in competition or inconsistent with, the Merger or the Merger Agreement,
including the adoption thereof or the consummation thereof, including any amendment of the
Company’s organizational documents or other proposal or transaction involving the Company or any of
its Subsidiaries which amendment or other proposal or transaction would in any manner impede,
interfere with, materially delay, frustrate, prevent or nullify or result in a breach of any
representation or warranty, covenant, agreement or other obligation of the Company or any of its
Subsidiaries under or with respect to the Merger Agreement or any of the transactions contemplated
hereby or thereby, (v) against any amendment to the Company’s organizational documents,
extraordinary dividend, distribution or recapitalization by the Company or change in the capital
structure of the Company (other than pursuant to or as explicitly permitted by the Merger
Agreement) and (vi) against any action,
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proposal, transaction or agreement that would reasonably be expected to result in any breach
in any respect of any covenant, representation or warranty or any other obligation or agreement
contained in the Merger Agreement or in any condition to the consummation of the Merger set forth
in Article VI of the Merger Agreement not being fulfilled.
(b) If the Board of Directors (acting through the Special Committee) terminates the Merger
Agreement pursuant to Section 7.01(c)(ii) thereof in order to enter into a definitive agreement
with respect to a Superior Proposal, or the Parent terminates the Merger Agreement pursuant to
Section 7.01(d)(ii) thereof and in either case the Company pays to Parent the Termination Fee, then
the Owned Shares will be voted (i) in favor of the adoption of the merger or other acquisition
agreement reflecting the Superior Proposal and the consummation of the transactions contemplated
thereby, (ii) in favor of the approval of any other matter to be approved by the stockholders of
the Company to facilitate the transactions contemplated thereby, (iii) against any other Company
Acquisition Proposal or any transaction contemplated by any such Company Acquisition Proposal, (iv)
against any proposal made in opposition to, or in competition or inconsistent with, the authorized
Superior Proposal, including any amendment of the Company’s organizational documents or other
proposal or transaction involving the Company or any of its Subsidiaries which amendment or other
proposal or transaction would in any manner impede, interfere with, materially delay, frustrate,
prevent or nullify or result in a breach of any representation or warranty, covenant, agreement or
other obligation of the Company or any of its Subsidiaries under or with respect to the merger or
other acquisition agreement reflecting the Superior Proposal and the consummation of the
transactions contemplated thereby, (v) against any amendment to the Company’s organizational
documents, extraordinary dividend, distribution or recapitalization by the Company or change in the
capital structure of the Company (other than pursuant to or as explicitly permitted by such merger
or other acquisition agreement) and (vi) against any action, proposal, transaction or agreement
that would reasonably be expected to result in any breach in any respect of any covenant,
representation or warranty or any other obligation or agreement contained in such merger or other
acquisition agreement or in any condition to the consummation of such transaction not being
fulfilled.
Section 2.2 Grant of Irrevocable Proxy.
(a) In the case of a vote referred to in Section 2.1(a), each Contributing Stockholder hereby
appoints Parent and any designee of Parent, and each of them individually, as such Contributing
Stockholder’s agent, attorney and proxy, with full power of substitution and resubstitution, to
vote or act by written consent until the Expiration Time with respect the Owned Shares solely with
respect to the matters and in the manner specified in Section 2.1. This proxy is given to secure
the performance of the duties of each Contributing Stockholder under this Agreement. In the case of
a vote referred to in Section 2.1(a), each Contributing Stockholder shall, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or further consents,
documents and other instruments as the Parent may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement. The proxy and power of attorney
granted pursuant to this Section 2.2(a) by each Contributing Stockholder shall be irrevocable
during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law
to support an irrevocable proxy and shall revoke any and all prior proxies granted by such
Contributing Stockholder. The vote of the
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proxyholder shall control in any conflict between the vote by the proxyholder of such
Contributing Stockholder’s Owned Shares and a vote by such Contributing Stockholder of his, her or
its Owned Shares. The power of attorney granted by each Contributing Stockholder herein is a
durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of
such Contributing Stockholder. The proxy and power of attorney granted hereunder shall be
automatically revoked upon termination of this Agreement in accordance with its terms.
(b) In the case of a vote referred to in Section 2.1(b), each Contributing Stockholder hereby
appoints the Company and any designee of the Company, and each of them individually, as such
Contributing Stockholder’s agent, attorney and proxy, with full power of substitution and
resubstitution, to vote or act by written consent until the Expiration Time with respect the Owned
Shares solely with respect to the matters and in the manner specified in Section 2.1. This proxy is
given to secure the performance of the duties of each Contributing Stockholder under this
Agreement. In the case of a vote referred to in Section 2.1(b), each Contributing Stockholder
shall, from time to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as the Company may reasonably
request for the purpose of effectively carrying out the transactions contemplated by this
Agreement. The proxy and power of attorney granted pursuant to this Section 2.2(b) by each
Contributing Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to
be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any
and all prior proxies granted by such Contributing Stockholder. The vote of the proxyholder shall
control in any conflict between the vote by the proxyholder of such Contributing Stockholder’s
Owned Shares and a vote by such Contributing Stockholder of his, her or its Owned Shares. The
power of attorney granted by each Contributing Stockholder herein is a durable power of attorney
and shall survive the dissolution, bankruptcy, death or incapacity of such Contributing
Stockholder. The proxy and power of attorney granted hereunder shall be automatically revoked upon
termination of this Agreement in accordance with its terms.
Section 2.3 Additional Shares. Each Contributing Stockholder hereby agrees, while this
Agreement is in effect, promptly to notify Parent and the Company of the number of any new Shares
with respect to which Beneficial Ownership is acquired by such Contributing Stockholder, if any,
after the date hereof and before the Expiration Time. Any such Shares shall automatically become
subject to the terms of this Agreement as Owned Shares as though Beneficially Owned by such
Contributing Stockholder as of the date hereof.
Section 2.4 Restrictions on Transfer, Etc. Except as provided for or permitted herein,
each Contributing Stockholder agrees, from the date hereof until the Expiration Time, not to (i)
directly or indirectly Transfer or offer to Transfer any Owned Shares; (ii) tender any Owned Shares
into any tender or exchange offer or otherwise; (iii) enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, with respect to such Contributing Stockholder’s Owned Shares
or (iv) otherwise restrict the ability of such Contributing Stockholder freely to exercise all
voting rights with respect thereto. Any action attempted to be taken in violation of the preceding
sentence will be null and void. Notwithstanding the foregoing, each Contributing Stockholder may
make transfers of Owned Shares (a) for estate planning or similar purposes so long as such
Contributing Stockholder or another Contributing Stockholder retains control over the voting and
disposition of such Owned
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Shares and agrees in writing to continue to vote such Owned Shares in accordance with this
Agreement and (b) pursuant to the Equity Rollover Commitment of such Contributing Stockholder. Each
Contributing Stockholder further agrees to authorize and hereby authorizes Parent and the Company
to notify the Company’s transfer agent that there is a stop transfer order with respect to all of
the Owned Shares and that this Agreement places limits on the voting of the Owned Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Contributing Stockholders. Each
Contributing Stockholder, severally and not jointly, represents and warrants to the Company and
Parent as of the date of this Agreement and at all times during the term of this Agreement, as
follows:
(a) Such Contributing Stockholder has the requisite capacity and all necessary authority to
execute and deliver this Agreement and to fulfill and perform such Contributing Stockholder’s
obligations hereunder. This Agreement has been duly and validly executed and delivered by such
Contributing Stockholder and constitutes a legal, valid and binding agreement of such Contributing
Stockholder enforceable against such Contributing Stockholder in accordance with its terms.
(b) The number of Shares of Company Common Stock constituting Owned Shares of such
Contributing Stockholder as of the date hereof, and the number of votes which the holder of such
Shares shall be entitled to cast in respect of any matter as to which holders of Shares are
entitled to cast votes, are set forth next to such Contributing Stockholder’s name on Schedule
A of this Agreement. Such Contributing Stockholder or an Affiliate controlled by such
Contributing Stockholder is the record and Beneficial Owner and has good, valid and marketable
title, free and clear of any Liens (other than those arising under this Agreement or the Equity
Rollover Commitment of such Contributing Stockholder or as set forth on Schedule A hereto),
of the Owned Shares, and, except as provided in this Agreement, has sole and unrestricted power to
dispose of and vote all of such Contributing Stockholder’s Owned Shares without the consent or
approval of, or any other action on the part of any other Person, and has not granted any proxy
inconsistent with this Agreement that is still effective or entered into any voting or similar
agreement with respect to, such Contributing Stockholder’s Owned Shares (other than as set forth on
Schedule A hereto). The Owned Shares set forth next to such Contributing Stockholder’s name
on Schedule A hereto constitute all of the capital stock of the Company that is
Beneficially Owned by such Contributing Stockholder as of the date hereof, and, except for such
Contributing Stockholder’s Owned Shares and the Owned Shares owned by the other Contributing
Stockholders who are parties to this Agreement, such Contributing Stockholder or an Affiliate
controlled by such Contributing Stockholder does not Beneficially Own or have any right to acquire
(whether currently, upon lapse of time, following the satisfaction of any conditions, upon the
occurrence of any event or any combination of the foregoing) any Shares or any securities
convertible into Shares (excluding Company Stock Options). Except as set forth on Schedule
A hereto, there are no agreements or arrangements of any kind, contingent or otherwise,
obligating the Contributing Stockholder to Transfer or caused
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to be Transferred any of its Owned Shares and no Person has any contractual or other right or
obligation to purchase or otherwise acquire any of such Owned Shares.
(c) Other than the filing by such Contributing Stockholder of any reports with the SEC
required by Section 13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this
Agreement by such Contributing Stockholder, the consummation by such Contributing Stockholder of
the transactions contemplated hereby or compliance by such Contributing Stockholder with any of the
provisions hereof (i) requires any Governmental Authorization, or any consent of, filing with or
notification to, any other Person, by such Contributing Stockholder, (ii) results in a violation or
breach of, or constitutes (with or without notice or lapse of time or both) a default (or gives
rise to any third party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any organizational document or Contract to
which such Contributing Stockholder is a party or by which such Contributing Stockholder or any of
such Contributing Stockholder’s properties or assets (including such Contributing Stockholder’s
Owned Shares) may be bound, (iii) violates any Order or Law applicable to such Contributing
Stockholder or any of such Contributing Stockholder’s properties or assets (including such
Contributing Stockholder’s Owned Shares), or (iv) results in a Lien upon any of such Contributing
Stockholder’s properties or assets (including such Contributing Stockholder’s Owned Shares).
(d) Such Contributing Stockholder has duly complied with all applicable Federal and State
securities Laws in connection with the execution and delivery by such Contributing Stockholder of
this Agreement and such Contributing Stockholder’s performance hereunder.
ARTICLE IV
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Section 4.1 Waiver of Appraisal Rights. Each Contributing Stockholder hereby waives
any appraisal rights that such Contributing Stockholder may have with respect to either (i) the
Merger or (ii) the merger or other transaction contemplated by a Superior Proposal for which the
Contributing Stockholder has agreed to vote pursuant to Section 2.1(b).
Section 4.2 Disclosure. Each Contributing Stockholder, severally and not jointly,
hereby authorizes the Company and Parent to publish and disclose in any announcement or disclosure
required by the SEC or other Governmental Entity such Contributing Stockholder’s identity and
ownership of the Owned Shares and the nature of such Contributing Stockholder’s obligations under
this Agreement.
Section 4.3 Non-Interference; Further Assurances. Each Contributing Stockholder agrees
that, prior to the termination of this Agreement, such Contributing Stockholder shall not take any
action that would make any representation or warranty of such Contributing Stockholder contained
herein untrue or incorrect or have the effect of preventing, impeding, interfering with or
adversely affecting the performance by such Contributing Stockholder of its obligations under this
Agreement. Each Contributing Stockholder agrees, without further consideration, to execute and
deliver such additional documents and to take such further actions as necessary or reasonably
requested by Parent or the Company to confirm and
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assure the rights and obligations set forth in this Agreement or to consummate the
transactions contemplated by this Agreement.
Section 4.4 No Solicitation. From and after the No-Shop Period Start Date, subject to
Section 6.18, each Contributing Stockholder agrees that it shall not, and shall direct its
Representatives not to, directly or indirectly, (i) initiate, solicit or encourage (including by
way of providing information) the submission of any inquiries, proposals or offers or any other
efforts or attempts that constitute or may reasonably be expected to lead to any Company
Acquisition Proposal, (ii) engage in any discussions or negotiations with respect to any Company
Acquisition Proposal, or otherwise cooperate with or assist or participate in, or facilitate any
such inquiries, proposals, discussions or negotiations, (iii) approve or recommend, or publicly
propose to approve or recommend, a Company Acquisition Proposal, (iv) or execute or enter into any
merger agreement, letter of intent, agreement in principle, share purchase agreement, asset
purchase agreement or share exchange agreement, option agreement or other similar agreement
providing for or relating to a Company Acquisition Proposal, or (v) propose or agree to do any of
the foregoing. From and after the No-Shop Period Start Date, each Contributing Stockholder agrees
that it shall, and shall cause each of its Representatives to, immediately cease and cause to be
terminated any solicitation, encouragement, discussion or negotiation with any Person (other than
the parties hereto) that has made or indicated an intention to make a Company Acquisition Proposal.
Notwithstanding anything to the contrary in this Agreement, (x) if the Company, its Subsidiaries
or any of their respective Representatives has provided information to or entered into discussions
or negotiations with, in each case in compliance with the provisions of Section 5.02 of the Merger
Agreement, any person or persons in response to an Acquisition Proposal made by such person or
persons, then each Contributing Stockholder may provide information to and engage in discussions or
negotiations with such person or persons as and to the extent that the Company, its Subsidiaries or
their respective Representatives are permitted to do so pursuant to the terms of the Merger
Agreement and (y) each Contributing Stockholder shall be permitted to comply with its disclosure
obligations under applicable law.
ARTICLE V
TERMINATION
TERMINATION
Section 5.1 Termination. This Agreement shall automatically terminate without further
action upon the earliest to occur (the “Expiration Time”) (a) with respect to a
Contributing Stockholder’s obligations hereunder in respect of the Merger Agreement and the Merger,
(i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms,
and (iii) the written agreement of Parent and the Company to terminate this Agreement; and (b) with
respect to a Contributing Stockholder’s obligations hereunder in respect of a Superior Proposal,
(i) the effective time of any merger of the Company provided for in such Superior Proposal or, if
there is no provision for such a merger, the closing of the transactions contemplated thereby, (ii)
the termination of the acquisition agreement reflecting the Superior Proposal in accordance with
its terms, and (iii) the public announcement by the Company of the withdrawal by the Company’s
Board of Directors (acting through the Special Committee) of its recommendation of the Superior
Proposal).
Section 5.2 Effect of Termination. Upon termination of a Contributing Stockholder’s
obligations hereunder in respect of the Merger Agreement and the Merger, the
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rights and obligations of the Parent under this Agreement will also automatically terminate
and become void without further action by any party except for the provisions of this Article V and
Article VI, which will survive such termination. Upon the later to occur of termination of a
Contributing Stockholder’s obligations hereunder in respect of the Merger Agreement and the Merger,
and the termination of a Contributing Stockholder’s obligations hereunder in respect of a Superior
Proposal, the rights and obligations of all of the parties will terminate and become void without
further action by any party except for the provisions of this Article V and Article VI, which will
survive such termination. Notwithstanding the foregoing, the termination of this Agreement shall
not relieve any party of liability for any willful breach of this Agreement prior to the time of
termination.
ARTICLE VI
GENERAL
GENERAL
Section 6.1 Notices. Any notice, request, instruction or other communication under
this Agreement shall be in writing and delivered by hand or overnight courier service or by
facsimile, (i) if to a Contributing Stockholder, to the address set forth for such Contributing
Stockholder on Schedule A hereto, and (ii) if to the Company or Parent, in accordance with
Section 8.07 of the Merger Agreement, or to such other Persons, addresses or facsimile numbers as
may be designated in writing by the Person entitled to receive such communication as provided
above. Each such communication, if to a Contributing Stockholder, will be effective (A) if
delivered by hand or overnight courier service, when such delivery is made at the address specified
in this Section 6.1, or (B) if delivered by facsimile, when such facsimile is transmitted to the
facsimile number specified in this Section 6.1 and appropriate confirmation is received.
Section 6.2 Parties in Interest. Other than with respect to the parties to this
Agreement, nothing in this Agreement, express or implied, is intended to or shall confer upon any
person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 6.3 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without giving effect to any applicable
principles of conflict of laws that would cause the Laws of another state otherwise to govern this
Agreement.
Section 6.4 Severability. The provisions of this Agreement are severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions of this Agreement. If any provision of this Agreement, or the application of
that provision to any Person or any circumstance, is invalid or unenforceable, (i) a suitable and
equitable provision will be substituted for that provision in order to carry out, so far as may be
valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (ii)
the remainder of this Agreement and the application of that provision to other Persons or
circumstances will not be affected by such invalidity or unenforceability, nor will such invalidity
or unenforceability affect the validity or enforceability of that provision, or the application of
that provision, in any other jurisdiction.
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Section 6.5 Assignment. Neither this Agreement nor any right, interest or obligation
hereunder may be assigned by any party hereto, in whole or part (whether by operation of Law or
otherwise), without the prior written consent of the other parties hereto and any attempt to do so
shall be null and void; except that Parent may assign, in its sole discretion, any or all of its
rights, interests and obligations under this Agreement to any direct or indirect wholly owned
subsidiary of Parent, but no such assignment will alter or effect in any way Parent’s obligations
hereunder.
Section 6.6 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective successors and
permitted assigns, including without limitation in the case of each Contributing Stockholder, any
trustee, executor, heir, legatee or personal representative succeeding to the ownership of (or
power to vote) such Contributing Stockholder’s Owned Shares or other securities subject to this
Agreement (including as a result of the death, disability or incapacity of such Contributing
Stockholder).
Section 6.7 Interpretation. The headings in this Agreement are for reference only and
do not affect the meaning or interpretation of this Agreement. Definitions apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
includes the corresponding masculine, feminine and neuter forms. All references in this Agreement
to Articles and Sections refer to Articles and Sections of this Agreement unless the context
requires otherwise. The words “include,” “includes” and “including” are not limiting and will be
deemed to be followed by the phrase “without limitation.” The phrases “herein,” “hereof,”
“hereunder” and words of similar import shall be deemed to refer to this Agreement as a whole and
not to any particular provision of this Agreement. The word “or” shall be inclusive and not
exclusive unless the context requires otherwise. Unless the context requires otherwise, any
agreements, documents, instruments or Laws defined or referred to in this Agreement will be deemed
to mean or refer to such agreements, documents, instruments or Laws as from time to time amended,
modified or supplemented, including (i) in the case of agreements, documents or instruments, by
waiver or consent and (ii) in the case of Laws, by succession of comparable successor statutes. All
references in this Agreement to any particular Law will be deemed to refer also to any rules and
regulations promulgated under that Law. References to a Person will refer to its predecessors and
successors and permitted assigns.
Section 6.8 Amendments. This Agreement may not be amended except by the express
written agreement signed by all of the parties to this Agreement.
Section 6.9 Waiver. The failure of any party to assert any of its rights, powers or
remedies under this Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with his or its obligations hereunder, and any
custom or practice of the parties at variance with the terms hereof, will not constitute a waiver
of his or its right to exercise any such or other right, power or remedy or to demand such
compliance.
Section 6.10 Fees and Expenses. Except as expressly provided in this Agreement or the
Merger Agreement, each party is responsible for its own fees and expenses (including the fees and
expenses of financial consultants, investment bankers, accountants and
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counsel) in connection with the entry into of this Agreement and the consummation of the
transactions contemplated hereby.
Section 6.11 Entire Agreement. This Agreement (together with the Merger Agreement)
constitutes the entire agreement and supersedes all other prior agreements, understandings,
representations and warranties, both written and oral, among the parties to this Agreement with
respect to the subject matter of this Agreement.
Section 6.12 Rules of Construction. The parties to this Agreement have been
represented by counsel during the negotiation and execution of this Agreement and waive the
application of any Laws or rule of construction providing that ambiguities in any agreement or
other document will be construed against the party drafting such agreement or other document.
Section 6.13 Remedies Cumulative. Except as otherwise provided in this Agreement, any
and all remedies expressly conferred upon a party to this Agreement will be cumulative with, and
not exclusive of, any other remedy contained in this Agreement, at law or in equity. The exercise
by a party to this Agreement of any one remedy will not preclude the exercise by it of any other
remedy.
Section 6.14 Counterparts; Effectiveness; Execution. This Agreement may be executed in
any number of counterparts, all of which are one and the same agreement. This Agreement will become
effective and binding upon each Contributing Stockholder when executed by such Contributing
Stockholder, Parent and the Company. This Agreement may be executed by facsimile signature by any
party and such signature is deemed binding for all purposes hereof, without delivery of an original
signature being thereafter required.
Section 6.15 Specific Performance. The parties to this Agreement agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that prior to the termination of this Agreement in accordance with Article V the parties to
this Agreement will be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement in any court of
the United States or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
Section 6.16 Submission to Jurisdiction. Each of the parties hereto irrevocably agrees
that any Action with respect to this Agreement and the rights and obligations arising hereunder, or
for recognition and enforcement of any judgment in respect of this Agreement and the rights and
obligations arising hereunder brought by the other party hereto or its successors or assigns, shall
be brought and determined exclusively in any federal or state court located in the State of
Delaware, provided that nothing in this Section 6.16 shall prevent a party from seeking injunctive
relief in any court of the United States or any state having jurisdiction as provided in Section
6.15 above. Each of the parties hereto hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect of its property, generally and unconditionally, to the
personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating
to this Agreement or any of the transactions contemplated hereby in any court other than the
aforesaid courts, provided that nothing in this Section 6.16 shall prevent a party from seeking
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injunctive relief in any court of the United States or any state having jurisdiction as
provided in Section 6.15 above. Each of the parties hereto hereby irrevocably waives, and agrees
not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the
jurisdiction of the above named courts for any reason other than the failure to serve in accordance
with this Section 6.16, (b) any claim that it or its property is exempt or immune from jurisdiction
of any such court or from any legal process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise) and (c) to the fullest extent permitted by the applicable law, any claim
that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that mailing of
process or other papers in connection with any such action or proceeding in the manner provided in
Section 6.1 or in such other manner as may be permitted by applicable Laws, will be valid and
sufficient service thereof.
Section 6.17 Waiver of Jury Trial. Each party acknowledges and agrees that any
controversy that may arise under this Agreement is likely to involve complicated and difficult
issues and, therefore, each such party irrevocably and unconditionally waives any right it may have
to a trial by jury in respect of any litigation, controversy or other Action directly or indirectly
arising out of or relating to this Agreement or the transactions contemplated by this Agreement.
Each party to this Agreement certifies and acknowledges that (i) no Representative of any other
party has represented, expressly or otherwise, that such other party would not seek to enforce the
foregoing waiver in the event of an Action, (ii) such party has considered the implications of this
waiver, (iii) such party makes this waiver voluntarily and (iv) such party has been induced to
enter into this Agreement by, among other things, the mutual waivers and certifications in this
Section 6.17.
Section 6.18 Action in Stockholder Capacity Only. The parties acknowledge that this
Agreement is entered into by each Contributing Stockholder solely in such Contributing
Stockholder’s capacity as the Beneficial Owner of such Contributing Stockholder’s Owned Shares and
nothing in this Agreement restricts or limits any action taken by such Contributing Stockholder in
his capacity as a director or officer of the Company (including, without limitation, under the
Merger Agreement and under the Cooperation Agreement, dated as of the date hereof, between the
Company and certain parties thereto), or any of its controlled affiliates (but not on his own
behalf as a stockholder) and the taking of any actions (or failure to act) in his capacity as an
officer or director of the Company, or any of its controlled affiliates will not be deemed to
constitute a breach of this Agreement.
[ SIGNATURE PAGE TO FOLLOW ]
-11-
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of the
date first above written.
| CUMULUS MEDIA, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President, Secretary and General Counsel | |||
| CLOUD ACQUISITION CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxx X. Xxxxxx, Xx. | |||
| Title: | Chairman, President and CEO | |||
| /s/ Xxxxx X. Xxxxxx, Xx. | ||||
| Xxxxx X. Xxxxxx, Xx. | ||||
| /s/ Xxxx X. Xxxxxx | ||||
| Xxxx X. Xxxxxx | ||||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx | ||||
| /s/ Xxxxx X. Xxxxxx, Xx. | ||||
| Xxxxx X. Xxxxxx, Xx. |
SCHEDULE A
| Contributing Stockholder | Shares | Votes | Notes | |||||||
Xxxxx X. Xxxxxx, Xx. (Class A) |
1,612,449 | 1,612,449 | (1), (2), (3) | |||||||
c/o Cumulus Media, Inc. (Class C) |
644,871 | 6,448,710 | ||||||||
14 Piedmont Center Total |
2,257,320 | 8,061,159 | ||||||||
Xxxxx 0000
|
||||||||||
Xxxxxxx, Xxxxxxx 00000 |
||||||||||
Xxxxx X. Xxxxxx, Xx. (Class A) |
884,000 | 884,000 | ||||||||
00000 Xxx Xxxxxx Xxxx |
||||||||||
Xxxxx Xxxx Xxxxx, Xxxxxxx 00000 |
||||||||||
Xxxx X. Xxxxxx (Class A) |
1,767,246 | 1,767,246 | (2) | |||||||
c/o Cumulus Media, Inc 00 Xxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, Xxxxxxx 00000 |
||||||||||
Xxxxx X. Xxxxxx (Class A) |
1,254,352 | 1,254,352 | ||||||||
c/x Xxxxxx
Broadcasting Company 00 Xxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, Xxxxxxx 00000 |
||||||||||
Xxxxxxx X. Xxxxxx (Class A) |
1,347,683 | 1,347,683 | ||||||||
c/x Xxxxxx Publishing, Inc. 00 Xxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, Xxxxxxx 00000 |
||||||||||
| Notes: | ||
| (1) | Includes 10,000 shares of Class A Common Stock held of record by DBBC, L.L.C., a Georgia limited liability company (“DBBC”), over which the Contributing Stockholder shares voting power. The Contributing Stockholder is the sole manager of DBBC. | |
| (2) | All shares held by the Contributing Stockholder have been pledged as collateral to UBS Securities, or an affiliate thereof, to secure a loan made to the Contributing Stockholder. | |
| (3) | The Contributing Stockholder is a party to a Voting Agreement, dated June 30, 1998, that is described in the Contributing Stockholder’s statement on Schedule 13D originally filed on August 29, 2002. |
