EXHIBIT 2.2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of January 23, 2002, by and among
Cumulus Media Inc., an Illinois corporation (the "Company"), Aurora
Communications, LLC, a Delaware limited liability company ("Aurora"), and the
parties listed on Annex A hereto (each, a "Seller" and collectively, the
"Sellers").
RECITALS
WHEREAS, pursuant to the terms of that certain Acquisition Agreement,
dated as of November 18, 2001, as amended by that certain Amendment Agreement,
dated as of the date hereof, (the "Acquisition Agreement"), by and among the
Company, and certain other parties, including the Sellers, who directly or
indirectly own all of the membership interests of Aurora, the Company will
directly or indirectly acquire from Sellers (the "Acquisition") all of the
membership interests of Aurora;
WHEREAS, in connection with the Acquisition, Buyer agreed to deposit in
escrow 770,000 shares (the "Pre-Closing Escrow Shares") of the Company's Class A
Common Stock, par value $.01 per share ("Class A Common Stock");
WHEREAS, pursuant to the Acquisition Agreement, the consideration for
the Acquisition is payable in cash and shares of Class A Common Stock (or shares
of the Company's Class B Common Stock, par value $0.01 per share ("Class B
Common Stock"), which is convertible into shares of Class A Common Stock);
WHEREAS, pursuant to the Acquisition Agreement, Buyer agreed to grant
to Sellers the right to purchase shares of Class A Common Stock and shares of
Class B Common Stock pursuant to Common Stock Purchase Warrants, which will be
issued as of the Closing Date (the "Warrants");
WHEREAS, Buyer agreed to provide certain registration rights to Sellers
with respect to the Pre-Closing Escrow Shares, the Closing Shares and the
Warrant Shares (each as defined below), and, in connection therewith, Buyer and
Sellers entered into that certain Registration Rights Agreement, dated as of
November 18, 2001 (the "Registration Rights Agreement");
WHEREAS, the parties hereto desire to amend and restate the
Registration Rights Agreement originally entered into on November 18, 2001, in
its entirety, in order to give effect to the terms and conditions of the
Acquisition Agreement as in effect after giving effect to the Amendment
Agreement, dated as of the date hereof; and
WHEREAS, the Company and the Sellers are entering into this Agreement
to set forth the terms and conditions applicable to such registration rights.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Company and Investors agree as follows:
1. Definitions.
Capitalized terms not otherwise defined herein have the meaning set
forth in the Acquisition Agreement. As used in this Agreement, the following
terms have the following meanings:
"ACQUISITION AGREEMENT" has the meaning set forth in the
recitals.
"AGREEMENT" has the meaning set forth in the preamble.
"BCI" means BancAmerica Capital Investors SBIC I, L.P.
"CLASS A COMMON STOCK" has the meaning set forth in the
recitals.
"CLASS B COMMON STOCK" has the meaning set forth in the
recitals.
"CLOSING DATE" means the date the Acquisition is consummated.
"CLOSING SHARES" means the shares of Class A Common Stock
acquired by, or issuable to, Sellers pursuant to Sections 1.2 and 1.3
of the Acquisition Agreement (including shares of Class A Common Stock
issued or issuable to Sellers upon conversion of shares of Class B
Common Stock acquired by, or issuable to, Sellers pursuant to Section
1.2 of the Acquisition Agreement).
"CLOSING SHARES REGISTRATION PERIOD" has the meaning set forth
in Section 3(b).
"CLOSING SHARES REGISTRATION STATEMENT" means the Company's
"shelf" registration statement on Form S-3 that covers the resale, to
be made on a continuous basis, of all of the Closing Shares and the
Warrant Shares that constitute Registrable Securities (and may include
other securities of the Company held by Other Shareholders), under Rule
415 under the Securities Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"COMPANY" has the meaning set forth in the preamble and shall
also include the Company's successors.
"COMPANY REGISTRATION" has the meaning set forth in Section
5(b)(i).
"DEMAND REGISTRATION" has the meaning set forth in Section
5(a)(i).
"DEMAND REGISTRATION STATEMENT" means a registration statement
filed by the Company with the SEC pursuant to Section 5 hereof, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each
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case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"DEMAND SHARES REGISTRATION PERIOD" has the meaning set forth
in Section 5(c).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor federal statute, and the
rules and regulations of the SEC issued under such act, as they each
may, from time to time, be amended.
"HOLDER(S)" means (i) Aurora, with respect to the Pre-Closing
Escrow Shares, (ii) a Seller to whom Closing Shares or Warrant Shares
are issued, or issuable to, pursuant to the Acquisition Agreement or
Warrants, as the case may be, or (iii) a transferee to whom
registration rights granted pursuant to this Agreement are assigned
pursuant to Section 9(a) hereof.
"INDEMNIFIED PARTY" has the meaning set forth in Section 7(c).
"INDEMNIFYING PARTY" has the meaning set forth in Section
7(c).
"OTHER SHAREHOLDERS" means Persons other than Holders, who, by
virtue of agreements with the Company or any affiliate of the Company,
whether entered into prior to, on, or after the date hereof, are
entitled to include securities of the Company in any of the
Registration Statements.
"PERMITTED INTERRUPTION" has the meaning set forth in Section
8.
"PERSON" means an individual, limited liability company,
association, joint stock company, partnership, corporation, trust or
unincorporated organization, estate or a government or agency or
political subdivision thereof.
"PIGGYBACK REGISTRATION" has the meaning set forth in Section
5(b)(i).
"PRE-CLOSING ESCROW SHARES" has the meaning set forth in the
recitals.
"PRE-CLOSING ESCROW SHARES REGISTRATION PERIOD" has the
meaning set forth in Section 2(b) hereof.
"PRE-CLOSING ESCROW SHARES REGISTRATION STATEMENT" means the
Company's "shelf" registration statement on Form S-3 that covers the
resale, to be made on a continuous basis, of all of the Pre-Closing
Escrow Shares that constitute Registrable Securities, under Rule 415
under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"PROSPECTUS" means the prospectus included in each respective
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, and by all other amendments and
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supplements to such prospectus, and in each case including all material
incorporated by reference therein.
"PUBLIC OFFERING" means the closing of an underwritten public
offering of shares of Class A Common Stock, or securities convertible
into or exchangeable or exercisable for Class A Common Stock,
registered with the SEC under the Securities Act.
"REGISTRABLE SECURITIES" means the Pre-Closing Escrow Shares,
the Closing Shares and the Warrant Shares, and any shares of Class A
Common Stock issued or issuable to any Holder with respect to the
Registrable Securities by way of stock dividends or stock splits or in
connection with a combination of shares, recapitalization, merger,
share exchange, consolidation or similar transaction; provided,
however, that any such shares of Class A Common Stock shall cease to be
Registrable Securities (i) when they have been sold pursuant to a
Registration Statement (except as permitted by the proviso to the last
sentence of Section 9(a) hereof), (ii) with respect to any Holder, at
such time as the entire amount of such Holder's Registrable Securities
may be sold in a single sale, in the opinion of counsel satisfactory to
the Company and such Holder, each in their reasonable judgment, without
any limitation as to volume pursuant to Rule 144 of the Securities Act
(including Rule 144(k)), (iii) have been transferred to someone other
than a Holder, or (iv) have ceased to be outstanding.
"REGISTRATION EXPENSES" means any and all expenses incident to
performance of, or compliance by the Company with this Agreement,
including without limitation: (i) all SEC or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees
and expenses incurred by the Company in connection with compliance with
state securities or blue sky laws (including related legal fees and
other expenses pertaining thereto), (iii) all expenses of preparing,
word processing, duplicating, printing and distributing the
Registration Statements, any Prospectus, and any amendments or
supplements thereto, (iv) the fees and disbursements of counsel for the
Company, (v) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any required
"cold comfort" letters or special audits, (vi) the reasonable fees and
disbursements, not to exceed a total of $75,000 in the case of the
Pre-Closing Escrow Shares Registration Statement and the Closing Shares
Registration Statement, of not more than one counsel acting on behalf
of the holders of the Registrable Securities chosen by the holders of a
majority of the Registrable Securities being registered thereunder, and
(vii) all underwriter fees and disbursements customarily paid by
issuers or sellers of securities.
"REGISTRATION PERIOD" means the applicable period of time
comprising the Pre-Closing Escrow Shares Registration Period, the
Closing Shares Registration Period or the Demand Shares Registration
Period, as the case may be.
"REGISTRATION STATEMENTS" means the Pre-Closing Escrow Shares
Registration Statement, the Closing Shares Registration Statement, a
Demand Shares Registration Statement and any other registration
statement prepared and filed with the SEC pursuant to Section 5 hereof.
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"REQUESTING HOLDERS" has the meaning set forth in Section
3(d).
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, or any successor federal statute, and the rules and
regulations of the SEC issued under such act, as they each may, from
time to time, be amended.
"THIRD PARTY REGISTRATION" has the meaning set forth in
Section 5(b)(i).
"WARRANT SHARES" means the shares of Class A Common Stock
acquired by the Holders upon exercise of the Warrants (including shares
of Class A Common Stock issued or issuable to Holders upon conversion
of shares of Class B Common Stock acquired by Holders upon exercise of
the Warrant).
"WARRANTS" has the meaning set forth in the recitals.
2. Pre-Closing Escrow Shares Registration Statement.
(a) The Company shall prepare and file the Pre-Closing
Escrow Shares Registration Statement with the SEC, no later than the earlier of
the date that is (i) 15 days following the date that the Buyer Proxy Statement
is first mailed to the Company's shareholders (which mailing shall occur as
promptly as practicable after the Buyer Proxy Statement has been cleared by the
SEC) and (ii) 105 days after the date hereof (or 165 days after the date hereof,
in the event that the Company is unable to file the Buyer Proxy Statement with
the SEC within 60 days of the date hereof because the applicable financial
statements or other information that is required to be included in the Buyer
Proxy Statement relating to Aurora or any other significant subsidiary or
material acquisition were not in form and substance for filing with the SEC
prior to such date). The resale of shares of Registrable Securities pursuant to
the Pre-Closing Escrow Shares Registration Statement shall not be underwritten.
(b) The Company shall use commercially reasonable efforts
to cause the Pre-Closing Escrow Shares Registration Statement to be declared
effective by the SEC as promptly as practicable after filing and (subject to
Section 6(d) and Section 8) to remain effective until the earliest to occur of
(i) the Closing Date, (ii) the date on which all Registrable Securities included
within the Pre-Closing Escrow Shares Registration Statement have been sold, or
(iii) two years from the date the Pre-Closing Escrow Shares are issued (the
"Pre-Closing Escrow Shares Registration Period").
(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to this Section 2; provided, however,
that the Holders shall pay all brokers commissions or similar fees of securities
industry professionals and applicable transfer taxes, if any, relating to the
sale or disposition of Registrable Securities thereunder.
(d) In addition to the Pre-Closing Escrow Shares that
constitute Registrable Securities, the Company may include in the Pre-Closing
Escrow Shares Registration Statement securities held by Other Shareholders.
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3. Closing Shares Registration Statement.
(a) The Company shall prepare and file the Closing Shares
Registration Statement with the SEC within 15 days following the date that the
Buyer Proxy Statement is first mailed to the Company's Shareholders.
(b) The Company shall use commercially reasonable efforts
to cause the Closing Shares Registration Statement to be declared effective by
the SEC as promptly as practicable after filing and (subject to Section 6(d) and
Section 8 hereof) to remain effective until the earlier to occur of (i) the date
on which all Registrable Securities included within the Closing Shares
Registration Statement have been sold (other than in accordance with the proviso
to the last sentence of Section 9(a) hereof) or (ii) three years from the date
the Closing Shares are issued (the "Closing Shares Registration Period").
(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to this Section 3; provided, however,
that the Holders shall pay all discounts, commissions or fees of underwriters,
selling brokers, dealer managers, sales agents, or similar fees of securities
industry professionals, and applicable transfer taxes, if any, relating to the
sale or disposition of Registrable Securities thereunder.
(d) The resale of shares of Registrable Securities
pursuant to the Closing Shares Registration Statement may from time to time
(without limitation as to the number of times), upon the written request of the
Holders of at least fifty percent (50%) of the Registrable Securities initially
issued to BCI and included under the Closing Shares Registration Statement (the
"Requesting Holders"), be underwritten. In that event, the underwriters for any
such underwritten offering shall be selected by the Company, subject, however,
to the approval of the Requesting Holders, which approval shall not be
unreasonably withheld. If the managing underwriter for such an underwritten
offering advises the Company in writing, with a copy to the Requesting Holders,
that, in its opinion, the number of Registrable Securities requested to be
included in an underwritten offering exceeds what can be sold in such offering
without a material adverse effect on the offering, then the Company will advise
the Requesting Holders and will include in such underwritten offering first, all
Registrable Securities included under the Closing Shares Registration Statement
and proposed to be included in such underwritten offering, pro rata among the
Holders thereof on the basis of the number of Registrable Securities proposed to
be included in such underwritten offering, and second, such other securities of
the Company held by Other Shareholders, and included under the Closing Shares
Registration Statement, who have requested that such securities be included in
such underwritten offering, pro rata on the basis of the number of shares
requested to be included therein, if any, up to the maximum number of
Registrable Securities that the managing underwriter advises the Company can be
sold in such offering.
4. Intentionally Omitted.
5. Additional Registration Rights of BCI.
(a) Demand Registration Rights of BCI.
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(i) Right to Demand. Commencing on the date that
is 30 months from the date of this Agreement, BCI shall have the right,
exercisable by written notice to the Company from time to time
thereafter (without limitation as to the number of times), to request
that the Company effect the registration under the Securities Act of
all or part of BCI's Closing Shares that constitute Registrable
Securities (a "Demand Registration"). Upon receipt of any notice, the
Company 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 the Registrable Securities that the Company has
been requested to register as specified in the demand given pursuant to
this Section 5(a)(i) (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), to the extent required to
permit the disposition of the Registrable Securities to be so
registered.
(ii) 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 BCI,
which approval shall not be unreasonably withheld; provided, however,
that BCI shall not be required to pursue an underwritten offering upon
exercise of the Demand Registration.
(iii) Participation in Demand Registrations. If
the managing underwriter advises the Company in writing, with a copy to
BCI 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 BCI and will include in such
Demand Registration first, all Registrable Securities proposed to be
included in the Registration Statement as a result of the exercise of a
Demand Registration, pro rata on the basis of the number of shares of
such Registrable Securities proposed to be included in such
Registration Statement, second, such other securities of the Company
held by Other Shareholders who have requested that such securities be
included in the Registration Statement, pro rata on the basis of the
number of shares requested to be included therein, if any, 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. If BCI disapproves of the number
of reduced Registrable Securities that can be included on behalf of
BCI, it may elect to withdraw therefrom by written notice to the
Company, the underwriter and any other Holders of Registrable
Securities to be included in the Demand Registration.
(iv) Additional Demand Registrations. If the
Company effects the registration of less than all of the Registrable
Securities requested to be included in a Demand Registration under
Subsection 5(a)(i) solely as a result of the operation of Subsection
5(a)(iii), BCI 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 right to a Demand Registration
contemplated in Section 5(a)(i)), provided that at least six (6) months
have elapsed since the effective date of the most recent Demand
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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 5(a)(iii).
(v) 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 5(a)(i) or 5(a)(iv), the Company may include in such
registration any other equity securities of the Company. A Demand
Registration pursuant to this Section 5(a) 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 SEC or other governmental agency or court
for any reason.
(b) Piggyback Registration Rights.
(i) Right to Piggyback. If the Company at any
time proposes to register any securities under the Securities Act
(other than the Pre-Closing Escrow Shares Registration Statement, the
Closing Shares Registration Statement or the Warrant Shares
Registration Statement, or 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 held by the Holders, the Company will give
prompt written notice to Holders of its intent to do so and the
proposed method of distribution, which notice shall state whether such
registration has been initiated by the Company (a "Company
Registration") or by another Person (a "Third-Party Registration").
Within thirty (30) days after receipt of such notice, any Holder may by
written notice to the Company request the registration by the Company
under the Securities Act of Registrable Securities not otherwise
registered pursuant to a Registration Statement in connection with such
proposed registration of securities by the Company under the Securities
Act (a "Piggyback Registration"). Such written notice to the Company
shall specify the Registrable Securities intended to be disposed of by
such Holder. Upon receipt of such request, the Company will use all
commercially reasonable efforts to register under the
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Securities Act all Registrable Securities which the Company had 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
registrations, and, thereupon, (x) 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 the Piggyback
Registration, 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
5(a) hereof, and (y) 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 5(b) shall
relieve the Company of its obligation to effect any Demand Registration
upon request under Section 5(a) hereof.
(ii) 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.
(iii) 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.
(iv) Termination of Piggyback Rights. The
piggyback registration rights provided to the Holders under this
Section 5(b) shall terminate as to any Holder at such time as such
Holder 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)).
(c) Registration Period. The Company shall use
commercially reasonable efforts to cause any Registration Statement filed
pursuant to Section 5(a) to be declared effective by the SEC as promptly as
practicable after filing and (subject to Sections 6(d) and 8 hereof) to remain
effective until the earlier of (1) such time as all securities registered
thereunder have been
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disposed of in accordance with the intended methods of disposition by the
sellers thereof as set forth in such Registration Statement and (2) the
expiration of one year 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 a Permitted Interruption), at which time the
Company shall have the right to deregister any of such securities that remain
unsold (the "Demand Shares Registration Period").
(d) Registration Expenses. The Company shall pay all
Registration Expenses in connection with the registration of Registrable
Securities pursuant to this Section 5, 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, which shall be borne by the
sellers of Registrable Securities being registered.
6. Registration Procedures.
(a) In connection with the obligations of the Company
with respect to the Registration Statements, the Company shall:
(i) prepare and file with the SEC the
Registration Statements under the Securities Act, the form of which (x)
shall be selected by the Company and (y) shall be available for the
resale of the Registrable Securities by the selling Holders thereof and
(z) shall comply as to form with the requirements of the applicable
form; provided, however, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, other than deemed
amendments resulting from filing documents that are incorporated by
reference, the Company will furnish to one counsel for the holders of
the Registrable Securities covered by such Registration Statement,
chosen by the holders of a majority of the Registrable Securities
covered by such Registration Statement, copies of all such documents
proposed to be filed, and will provide such counsel a reasonable period
of time to review and comment on such documents. The Company will not
file any such Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which the holders of a majority
of the Registrable Securities covered by such Registration Statement
shall reasonably object on a timely basis;
(ii) prepare and file with the SEC such
amendments and post-effective amendments to the Registration Statements
as may be necessary to keep the Registration Statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration
Statement for the applicable Registration Period and cause each
Prospectus to be supplemented by any required prospectus supplement and
cause any supplement to be filed pursuant to Rule 424 under the
Securities Act;
(iii) furnish to each Holder of Registrable
Securities, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any supplement thereto and
such other documents as such Holder may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable
Securities; and the
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Company consents to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law and the terms
hereof by each of the selling Holders of Registrable Securities in
connection with the offering and sale of the Registrable Securities in
accordance with the plan and manner of distribution as described in the
Prospectus;
(iv) use its commercially reasonable efforts to
(x) register or qualify the Registrable Securities under all applicable
state securities or "blue sky" laws of such jurisdictions as any
selling Holder of Registrable Securities shall reasonably request in
writing, (y) keep such registration or qualification in effect for the
applicable Registration Period, and (z) do any and all other acts and
things that may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that
the Company shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section
6(a)(iv), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not
otherwise so subject;
(v) promptly notify each Holder of Registrable
Securities and, if requested by any such Holder, confirm such advice in
writing (i) when each Registration Statement has become effective and
when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement
and its respective Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, or of any notification with respect to
the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation of any proceeding for such
purpose, and in any such case, the Company shall make every reasonable
effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement and provide immediate notice
to each Holder of the withdrawal of any such order;
(vi) upon request, furnish to each Holder,
without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto);
(vii) cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities sold and not bearing any
restrictive legends and enable such Registrable Securities to be in
such denominations and registered in such names as the selling Holders
may reasonably request at least three business days prior to the
delivery of any Registrable Securities sold under the Registration
Statements;
(viii) upon the occurrence of any event during the
Pre-Closing Escrow Shares Registration Period, the Closing Shares
Registration Period, the Warrant Shares Registration Period or the
Demand Shares Registration Period, as the case may be, that
11
makes any statement made in the respective Registration Statement or
the related Prospectus untrue in any material respect or that requires
the making of any changes in the respective Registration Statement,
Prospectus so that they will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, the
Company shall immediately notify each selling Holder and use its
commercially reasonable efforts to prepare and file with the SEC a
supplement or post-effective amendment to the respective Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities,
such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(ix) make available for inspection by one
representative designated by the Holders and their counsel, at
reasonable times and in a reasonable manner, all financial and other
records, pertinent documents and properties of the Company, and cause
the respective officers, directors and employees of the Company and its
independent public accountants to supply all information reasonably
requested by any such representative as shall be necessary to conduct a
reasonable investigation within the meaning of the Securities Act;
provided, that, for the purpose of such investigation, such Holders
have entered into a confidentiality agreement in a form satisfactory to
the Company;
(x) if reasonably requested by any Holder
covered by a Registration Statement, promptly incorporate in a
Prospectus supplement such information with respect to such Holder as
such Holder reasonably requests to be included therein;
(xi) provide and cause to be maintained a
transfer agent and registrar (which, in each case, may be the Company)
for all Registrable Securities covered by a Registration Statement from
and after a date not later than the effective date of such Registration
Statement;
(xii) use its reasonable best efforts to list all
Registrable Securities covered by such Registration Statement on the
Nasdaq Stock Market or other securities exchange on which Registrable
Securities of the same class covered by such Registration Statement are
then listed; and
(xiii) in connection with any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter
of such offering.
(b) The Company may require each seller of Registrable
Securities as to which any registration is being effected to promptly furnish
the Company such information regarding such seller and the distribution of such
securities (which, in the case of a non-underwritten offering may include sales
under Rule 144 under the Securities Act), and make such representations, as the
Company may from time to time reasonably request in writing. Each
12
Holder authorizes the Company to include such information (without independently
verifying the accuracy or completeness thereof) in the applicable Registration
Statement and/or other documents prepared or filed in connection therewith or in
connection with sales of Registrable Securities thereunder. Each Holder agrees
to promptly notify the Company of any inaccuracies or changes in the information
provided to the Company that may occur subsequent to the date hereof at any time
while a Registration Statement including shares owned by such Holder remains
effective. Each Holder agrees to distribute Registrable Securities only in the
manner described in the applicable Registration Statement.
(c) Each Holder agrees to, as expeditiously as possible,
(i) notify the Company of the occurrence of any event that makes any statement
made in either Registration Statement or Prospectus regarding such Holder untrue
in any material respect or that requires the making of any changes in either
Registration Statement or Prospectus regarding such Holder so that, in such
regard, (A) in the case of a Registration Statement, it will not contain any
untrue statement of material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading and
(B) in the case of a Prospectus, it will not contain any untrue statement of
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, and (ii) provide the Company with such
information as may be required to enable the Company to prepare a supplement or
post-effective amendment to the applicable Registration Statement or a
supplement to such Prospectus.
(d) Each Holder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
6(a)(viii) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statements until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(a)(viii) hereof, and, if so directed by the Company,
such Holder will deliver to the Company all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. Each Holder agrees that in the event it receives any notice from the
Company under Section 6(a)(viii), it will not disclose such fact to any Person.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Holder whose Registrable Securities are included in a Registration
Statement and each Person, if any, who controls such Holder within the meaning
of the Securities Act, and their respective directors, officers, employees,
partners, members and agents from and against all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by such Holder or any such director, officer, employee,
partner, member, agent or controlling Person in connection with defending or
investigating any such action or claim and any claim for indemnity hereunder)
(x) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the respective Registration Statement
(or any amendment thereto) pursuant to which Registrable Securities were
registered under the Securities Act, including any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, and all documents incorporated therein by reference, or any
omission or alleged omission to state therein a material fact required
13
to be stated therein or necessary to make the statements therein not misleading,
or (y) a violation by the Company of any rule or regulation promulgated pursuant
to any federal or 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 (i)
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; and (ii) with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary Prospectus, or
Prospectus, the indemnity agreement contained in this Section 7(a) will not
inure to the benefit of any Person to the extent that any such losses, claims,
damages or liabilities of such Person result from the fact that there was not
sent or given to any Person who purchased Registrable Securities, at or prior to
the written confirmation of the sale of Registrable Securities to such Person, a
copy of the Prospectus, as then amended or supplemented (exclusive of material
incorporated by reference), if the Company had previously furnished copies
thereof to such Person. 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) Each Holder of Registrable Securities included in a
Registration Statement agrees, severally and not jointly, to indemnify and hold
harmless the Company and its directors, officers, employees, agents and
affiliates and each Person, if any, who controls the Company within the meaning
of the Securities Act to the same extent as the foregoing indemnity from the
Company, but only with respect to information furnished to the Company by such
Holder through an instrument duly executed by such Holder specifically stating
that it is for use in the preparation of such Registration Statement; provided
that, with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary Prospectus, or Prospectus, the
indemnity agreement contained in this Section 7(b) will not inure to the benefit
of any such Person to the extent that any such losses, claims, damages or
liabilities of such Person result from the fact that there was not sent or given
to any Person who purchased Registrable Securities, at or prior to the written
confirmation of the sale of Registrable Securities to such Person, a copy of the
Prospectus, as then amended or supplemented (exclusive of material incorporated
by reference), if the Company or Holder had previously furnished copies thereof
to such Person. The prospective seller's 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 net 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.
14
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such Person (the "indemnified party") shall promptly notify the Person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company, its directors, its
officers who sign the Registration Statement and each Person, if any, who
controls the Company within the meaning of the Securities Act and (b) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Holders and all Persons, if any, who control any Holders within the
meaning of the Securities Act, and that all such fees and expenses shall be
reimbursed as they are incurred. In such case involving the Holders and such
Persons who control Holders, such firm shall be designated in writing by the
Holders of a majority of the Registrable Securities included in the registration
then outstanding. In all other cases, such firm shall be designated by the
Company.
After notice from the indemnifying party to such indemnified party of
its election to assume the defense, the indemnifying party shall not be liable
for any settlement of any proceeding effected without its prior written consent
(which consent shall not be unreasonably withheld) or for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof (unless allowed under the prior paragraph). No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding; provided that such unconditional
release may be subject to a parallel release of a claimant or plaintiff by such
indemnified party from all liability in respect of claims or counterclaims
asserted by such indemnified party, and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act by or on behalf of
any indemnified party; provided, further, that, as to each indemnified party
withholding such consent, the maximum amount of the losses, damages or
liabilities in respect of which such indemnified party may seek indemnification
hereunder with respect to such claim is limited to the amount that the
indemnifying party would have paid to or on behalf of such indemnified party had
such indemnified party consented to such settlement.
15
(d) If the indemnification provided for in paragraph (a)
or paragraph (b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Holders shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Holders, the interests of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company and each Holder agree that it would not
be just or equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions herein, a Holder shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by the Holder from the
sale of the Registrable Securities pursuant to the Registration Statement
exceeds the amount of any damage which such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of fraudulent misrepresentation.
The indemnity and contribution provisions contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder, or by or on behalf of the
Company, its officers or directors or any Person controlling the Company, and
(iii) any sale of Registrable Securities pursuant to a Registration Statement.
8. Permitted Interruption. Notwithstanding any provision
of this Agreement or the Acquisition Agreement, the Company may postpone for up
to six months the filing of or the effectiveness of any Registration Statement,
any amendment or post-effective amendment thereto or Prospectus supplement, or
otherwise facilitating the resale of Registrable Securities, and the Company
shall be free to take or omit to take any other action that would result in the
impracticality of any such filing, supplement or amendment, (x) if the Company's
Board of Directors, in its good faith judgment, determines that such filing,
supplement or amendment 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) or any merger,
consolidation, tender offer or similar transaction or (y) the Company's Board of
Directors, in its good faith judgment, determines that the filing, supplement or
amendment will adversely interfere with other Company events or would require
disclosure of material nonpublic
16
information relating to the Company which, in the reasonable opinion of the
Board of Directors of the Company, should not be disclosed (such event described
in this Section 8 during which the Company is not required to make such filing,
amendment or supplement is herein referred to as a "PERMITTED INTERRUPTION");
provided, that the Company may postpone the filing or effectiveness of any
Registration Statement pursuant hereto not more than once during any twelve
consecutive month period. If a Permitted Interruption affects a Registration
Statement during the period such Registration Statement remains effective, the
Company agrees to notify each of the Holders so affected by a Permitted
Interruption as promptly as practicable upon each of the commencement and the
termination of each Permitted Interruption. The Company shall not be required in
the notice of a Permitted Interruption to disclose the cause for such Permitted
Interruption, and each Holder agrees that it will not disclose receipt of a
notice of Permitted Interruption to any Person. Each Holder agrees that, upon
receipt of any notice from the Company, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the Company's notice as to the termination of the
Permitted Interruption. In the event of a Permitted Interruption, the duration
of the applicable period in which a Registration Statement is to remain
effective shall be extended by the number of days of such period. The Company
shall reimburse each holder of Registrable Securities for all costs and expenses
reasonably incurred by such Holder in connection with the postponement or
withdrawal of such a filing.
9. Miscellaneous.
(a) Limitation on Assignment of Registration Rights. 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. No
transfer of registration rights under this Agreement shall be permitted if
immediately following such transfer the disposition of such Registrable
Securities by the transferee is not restricted under the Securities Act;
provided, that if BCI transfers Registrable Securities representing 5% or more
of the outstanding Class A Common Stock of the Company and such transferee
executes and delivers the commitment described in the preceding sentence, such
transferee shall be entitled to enforce the rights initially granted to BCI in
respect of such Registrable Securities on a pro rata basis based on the amount
of Registrable Securities so transferred.
(b) No Inconsistent Agreements. The Company has not
entered into, and on or after the date of this Agreement will not enter into,
any agreement that is inconsistent with the rights granted to the Holders
pursuant to this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
other issued and outstanding securities under any such agreements. The granting
by the Company of registration rights to a third party shall not be deemed to be
inconsistent or conflict with the rights of BCI granted hereunder as long as the
provisions of Section 5 hereof are complied with at all times during which the
registration rights provided to BCI under Section 5 are in effect and have not
been terminated in accordance with Section 5 hereof.
17
(c) Amendments and Waivers. This Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority of the Registrable Securities
then outstanding affected by such amendment, modification, supplement, waiver or
consent; provided, however, that no amendment, modification, supplement, waiver
or consents to any departure from the provisions of Section 7 hereof shall be
effective as against any Holder unless consented to in writing by such Holder.
(d) Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective must be in writing and, unless
otherwise expressly provided herein, are deemed to have been duly given or made
when delivered by hand or by courier, or by certified mail, or, when transmitted
by facsimile and a confirmation of transmission printed by sender's facsimile
machine. A copy of any notice given by facsimile also must be mailed, postage
prepaid, to the addressee. Notices to the respective parties hereto must be
addressed as follows:
If to a Holder: to such address listed on Annex A
If to the Company: Cumulus Media Inc.
3535 Piedmont Road
Building 14, 14th Floor
Atlanta, Georgia 30305
Attention: Lewis W. Dickey, Jr.
Telephone: (404) 949-0700
Telecopier: (404) 443-0742
With a copy to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, Georgia 30308-3242
Attention: John E. Zamer
Telephone: (404) 581-8266
Telecopier: (404) 581-8330
Any party may alter the address to which communications or copies are
to be sent by giving notice of the change of address under this Section.
(e) Successors and Assigns. This Agreement binds and
inures to the benefit of the Holders and the Company and its successors.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
18
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia.
(i) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) 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.
(k) Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes the Registration Rights Agreement originally entered into on
November 18, 2001. The parties expressly acknowledge and agree that the parties
have no further rights, claims, duties or obligations pursuant thereto.
[SIGNATURES ON THE NEXT PAGE]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CUMULUS MEDIA INC.
By: /s/ Lewis W. Dickey, Jr.
-----------------------------------------
Lewis W. Dickey, Jr. Chairman and CEO
AURORA COMMUNICATIONS, LLC
By: AURORA MANAGEMENT, INC., as sole manager
By: /s/ Frank D. Osborn
-----------------------------------------
Name: Frank D. Osborn
Title:
----------------------------------
Address: 3 Stanford Landing
46 Southfield Avenue, Suite 210
Stamford, CT 06902
Attn: Frank D. Osborn
BANCAMERICA CAPITAL INVESTORS SBIC I, L.P.
By: BANCAMERICA CAPITAL
MANAGEMENT SBIC I, LLC, its
general partner
By: BANCAMERICA CAPITAL
MANAGEMENT I, L.P., its sole member
By: BACM I GP, LLC, its general partner
By: /s/ Robert H. Sheridan III
-----------------------------------------
Name: Robert H. Sheridan III
Title: Managing Director
20
Address: Bank of America Corporate Center
25th Floor
100 North Tryon Street
Charlotte, NC 28255-0001
/s/ Frank D. Osborn
--------------------------------------
FRANK D. OSBORN
Address: 64 Hemlock Hill Road
New Canaan, CT 06840
/s/ Frank G. Washington
---------------------------------------
FRANK G. WASHINGTON
Address: 601 University Avenue
Sacramento, CA 95825
ALLIED CAPITAL CORPORATION
By: /s/ Thomas H. Westbrook
-----------------------------------------
Name: Thomas H. Westbrook
Title: Managing Director
Address: 1919 Pennsylvania Avenue NW
Washington, D.C. 20006-3434
Attn: Thomas H. Westbrook
ALLIED INVESTMENT CORPORATION
By: /s/ Thomas H. Westbrook
-----------------------------------------
Name: Thomas H. Westbrook
Title: Managing Director
Address: 1919 Pennsylvania Avenue NW
Washington, D.C. 20006-3434
Attn: Thomas H. Westbrook
21
ALLISON WAITE OSBORN
CAROLINE LADNER OSBORN
ELIZABETH ANDREW OSBORN
FRANK WILLIAM OSBORN
KATHERINE NELSON OSBORN
/s/ Frank D. Osborn
---------------------------------------
By: Frank D. Osborn, as Attorney-in-Fact
Address: 64 Hemlock Hill Road
New Canaan, CT 06840
/s/ Vincent M. Cremona
--------------------------------------
VINCENT M. CREMONA
Address: Two Lafayette Square
350 Fairfield Avenue
Bridgeport, CT 06604
HELLER FINANCIAL, INC.
By: /s/ David J. Allen
-----------------------------------------
Name: David J. Allen
Title: Vice President
Address: 500 West Monroe Street
Chicago, IL 60661
Attn: David Allen
22
UNIONBANCAL VENTURE CORPORATION
By: /s/ J. Kevin Sampson /s/ David Bonrouhi
------------------------------------------
Name: J. Kevin Sampson David Bonrouhi
------------------------------------
Title: Vice President Vice President
-----------------------------------
Address: Private Capital Group
445 South Figueroa Street,
16th Floor
Los Angeles, CA 90071
Attn: J. Kevin Sampson
AURORA MANAGEMENT GROUP, LLC
By: /s Frank D. Osborn
------------------------------------------
Name: Frank D. Osborn
------------------------------------
Title:
-----------------------------------
Address: 3 Stamford Landing
46 Southfield Avenue, Suite 210
Stamford, CT 06902
Attn: Frank D. Osborn
23
ANNEX A
SELLERS
Frank D. Osborn
Josephine Nelson Osborn, as custodian for
Katherine Nelson under the CTUGMA
Josephine Nelson Osborn, as custodian for
Frank William Osborn under the CTUGMA
Josephine Nelson Osborn, as custodian for
Caroline Ladner Osborn under the CTUGMA
Josephine Nelson Osborn, as custodian for
Allison Waite Osborn under the CTUGMA
Elizabeth Andrew Osborn
Heller Financial, Inc.
UnionBanCal Venture Corporation
Frank G. Washington
Vincent M. Cremona
Michael F. Mangan
BancAmerica Capital Investors SBIC I L.P.
Allied Capital Corporation
Allied Investment Corporation
A-1