Exhibit 7.1
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is made as of the ______ day of June,
1998, by and between NATIONSBANC CAPITAL CORP. ("NationsBanc"), CUMULUS MEDIA
INC., an Illinois corporation (the "Corporation"), and the undersigned holders
(the "Shareholders") of all of the issued and outstanding shares of Class C
Common Stock of the Corporation ("Class C Stock") or options to acquire Class C
Stock.
RECITALS
NationsBanc is the holder of certain shares of the common stock of the
Corporation. The Articles of Incorporation of the Corporation provide that
under certain circumstances the holders of Class C Stock shall have the right to
elect a Director of the Corporation (the "Class C Director"), and the
Shareholders have agreed with NationsBanc that such Class C Director shall,
during the period specified herein, be the person designated by NationsBanc.
Accordingly, the parties wish to set forth their agreement with respect to the
election of the Class C Director.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby promise and agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following capitalized
terms shall be defined as follows:
"AFFILIATE" shall be defined as set forth in Rule 144 promulgated under the
Securities Act of 1933, as amended.
"APPLICABLE PERIOD" shall mean the period commencing on the date of the
issuance of a final order of the Federal Communications Commission ("FCC")
that the granting of a right to NationsBanc to designate a director of the
Corporation will not result in NationsBanc's interest in the Corporation
being "attributable" under applicable FCC rules, and ending on the date
that NationsBanc (together with its Affiliates) owns less than fifty
percent (50%) of the number of shares of Common Stock held by NationsBanc
on the date hereof.
"COMMON STOCK" shall mean the Class A Common Stock, Class B Common Stock,
and Class C Common Stock of the Corporation, each with a par value per
share of $.01.
"DESIGNATED CLASS C DIRECTOR" shall initially be Xxxxxx X. Xxxxxxxx, 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 "voting agreement" as described in Section
7.70 of the Illinois Business Corporation Act of 1983, as amended. Each
Shareholder acknowledges that it may not be possible to measure in monetary
terms the damages which NationsBanc would suffer
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by reason of a failure by any Shareholder to perform such Shareholder's
obligations under this Agreement. Accordingly, should any dispute arise
concerning any Shareholder's proper performance of such Shareholder's
obligations under this Agreement, NationsBanc shall be entitled to obtain an
injunction for specific performance, or other appropriate equitable relief,
requiring such Shareholder to act in accordance with the terms hereof. Any such
equitable remedy shall be non-exclusive and may be in addition to any other
remedy to which NationsBanc may be entitled.
7. SUCCESSORS. Any Shareholder who transfers shares of Class C Stock shall,
prior to and as a condition to such transfer, (a) notify the transferee of the
existence and terms of this Agreement, and (b) obtain the execution by such
transferee of a counterpart of this Agreement and any amendments hereto,
agreeing to be bound by the provisions hereof as a Shareholder hereunder.
8. REPRESENTATION. The Corporation and the Shareholders warrant and
represent, which warranties and representations shall survive the execution
hereof, that the Shareholders own all Class C Stock and all options to acquire
Class C Stock which are issued and outstanding as of the date hereof.
9. NOTICES. Any notice required or permitted to be given or made by any party
to any other hereunder shall be in writing and shall be considered to be given
and received in all respects when hand delivered, when delivered by prepaid
express or courier delivery service, when sent by facsimile transmission
actually received by the receiving equipment, or five (5) days after deposited
in the United States mail, certified or registered mail, postage prepaid, in
each case addressed to the parties at their respective addresses set forth
opposite their signatures to this Agreement or to such changed address as any
party shall designate by proper notice to the other parties.
10. GOVERNING LAW. This Agreement and the rights and remedies of the parties
hereto shall be governed by and construed in accordance with the laws of the
State of Illinois, without regard to the conflicts of laws provisions thereof.
11. LEGEND. Each certificate representing shares of Class C Stock shall bear a
legend stating that the shares are subject to this Agreement.
12. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original but when taken together shall constitute but
one and the same document.
13. WAIVER. No waiver by any party hereto of any breach of any provision of
this Agreement shall be deemed a waiver by such party of any subsequent breach.
14. ENTIRE AGREEMENT. This Agreement contains the entire understanding between
the parties hereto with respect to the matters set forth herein and all prior
discussions, negotiations, agreements, correspondence and understandings between
the parties (whether oral or written) relating to the terms of this agreement
are merged herein and superseded hereby. No provision
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of this Agreement may be amended or modified other than by a writing signed by
the party against whom enforcement is sought.
15. INVALIDITY. If for any reason one or more of the provisions of this
Agreement are deemed by a court of competent jurisdiction to be unenforceable or
otherwise waived by operation of law, the remainder of this Agreement shall be
deemed to be valid and enforceable and shall be construed as if such invalid and
unenforceable provision were omitted.
16. HEADINGS. The paragraph headings used in this Agreement are for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date above first written.
Attn: Xx. Xxxxxx X. Xxxxxxxx, III NATIONSBANC CAPITAL CORP.
NationsBanc Capital Investors
000 Xxxxx Xxxxx Xxxxxx
NationsBanc Corporate Center,
10th Floor
NC1-007-10-04 By:_____________________________________
Xxxxxxxxx, XX 00000 Xxxxxx X. Xxxxxxxx, III (title)
FAX: (000) 000-0000
Attn: Xx. Xxxxxxx Xxxxxxx CUMULUS MEDIA INC.
Cumulus Media Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000 By:_____________________________________
FAX: (000) 000-0000 Xxxxxxx Xxxxxxx, Executive Chairman
SHAREHOLDERS:
Attn: Xx. Xxxxxxx Xxxxxxx QUAESTUS MANAGEMENT CORPORATION
QUAESTUS Management Corporation
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000 By:_____________________________________
FAX: (000) 000-0000 Xxxxxxx Xxxxxxx, President
Attn: Xx. Xxxxx X. Xxxxxx, Xx. DBBC OF GEORGIA, LLC
DBBC of Georgia, LLC
0000 Xxxxxxxxx Xxxx X.X.
Xxxxx 000 By:_____________________________________
Xxxxxxx, XX 00000 Xxxxx X. Xxxxxx, Xx. (title)
FAX: (000) 000-0000
(signatures continued on next page)
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CML HOLDINGS, LLC
CML Holdings, LLC
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000 By:_____________________________________
(000) 000-0000
c/o Cumulus Media Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
FAX: (000) 000-0000 ________________________________________
Xxxxxxx Xxxxxxx
c/o DBBC of Georgia, LLC
0000 Xxxxxxxxx Xxxx X.X.
Xxxxx 000
Xxxxxxx, XX 00000 ________________________________________
FAX: (000) 000-0000 Xxxxx X. Xxxxxx, Xx.
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