EXHIBIT 2.5
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into as of
December ____, 2001, by DBBC, L.L.C., a Georgia limited liability company
("DBBC"), CUMULUS MEDIA, INC., an Illinois corporation ("Buyer"), LEWIS W.
DICKEY, JR. ("LWD"), an individual resident of the State of Georgia, JOHN W.
DICKEY ("JWD"), an individual resident of the State of Georgia, DBBC OF GEORGIA,
L.L.C. ("DBBC-GA"), a Georgia limited liability company, CML HOLDINGS, LLC
("CML"), a Delaware limited liability company, RICHARD W. WEENING ("Weening"),
an individual resident of the State of Wisconsin, QUAESTUS MANAGEMENT
CORPORATION ("Quaestus"), a Delaware corporation, and QUAESTUS PARTNER FUND a
Wisconsin limited partnership ("Quaestus Partner," and with LWD, JWD, DBBC-GA,
CML, Quaestus and Weening, collectively, the "Supporting Shareholders").
WITNESSETH:
WHEREAS, the Supporting Shareholders are the record owners of, and have
the exclusive right to vote, shares of Class A Common Stock and Class C Common
Stock, each $.01 par value per share, of Buyer (the "Buyer Common Stock") as
described on Schedule I attached hereto (such shares of Buyer Common Stock, as
they may be adjusted by stock dividends, stock splits, recapitalization,
reclassification, combination, merger, exchange of shares or otherwise, together
with all additional shares of Buyer Common Stock purchased by any Supporting
Shareholder or with respect to which any Supporting Shareholder acquires
beneficial ownership after the date hereof, including through the exercise of
options, warrants or other rights to acquire shares of Buyer Common Stock, or
the conversion of other securities of Buyer into Buyer Common Stock (as the same
may be adjusted as described herein), being collectively referred to herein as
the "Supporting Shareholders Shares");
WHEREAS, Buyer has as of the date of this Agreement entered into that
certain Agreement and Plan of Merger (the "Purchase Agreement") by and among
Buyer, DBBC and certain other parties, which provides that Buyer will acquire
from DBBC certain of its assets (the "Acquisition");
WHEREAS, the Acquisition is conditioned on the shareholders of Buyer
approving the transactions contemplated by the Purchase Agreement, including the
issuance of Cumulus Common Stock (such transactions collectively, the "Subject
Transactions");
WHEREAS, the Supporting Shareholders have agreed to enter into this
Agreement governing the voting of the Supporting Shareholders Shares as
described more fully herein;
WHEREAS, as an inducement to the parties to enter into the Purchase
Agreement, the parties have requested that the Supporting Shareholders agree,
and the Supporting Shareholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Definitions. All capitalized terms herein, unless defined
herein or the context otherwise requires, shall have the
definitions set forth in the Purchase Agreement.
2. Voting of Shares. As long as this Agreement has not terminated
in accordance with Section 7(a), each Supporting Shareholder
agrees to cause the Supporting Shareholders Shares of such
Supporting Shareholder to be voted at the Buyer Shareholders
Meeting and any and all postponements and adjournments thereof
or in any other circumstances in which a vote, consent or
other approval (including by written consent) with respect to
the Subject Transactions is sought to approve any Subject
Transaction and any other matter that is necessary in order
for the consummation of the transactions contemplated by the
Purchase Agreement.
3. Limitations on Disposition or Encumbrance of Shares.
(a) Each of LWD, JWD and DBBC-GA agrees, on a several and
not joint basis, that it will not agree to, and not
offer to, sell, distribute, transfer, tender, assign,
hypothecate or otherwise dispose of, directly or
indirectly its Supporting Shareholder Shares, or
create or permit to exist any security interest,
lien, claim, pledge, option, right of first refusal,
agreement, limitation on its voting rights, charge or
other encumbrance of any nature whatsoever with
respect to its Supporting Shareholders Shares
(collectively, a "Transfer") unless (i) in connection
with any Transfer of Supporting Shareholders Shares
effected pursuant to a privately negotiated
transaction or series of transactions, the Supporting
Shareholders have obtained the agreement of such
transferee(s) to be bound by the terms of this
Agreement in a manner reasonably acceptable to DBBC
(as that term is defined in the Purchase Agreement)
or (ii) such Transfer is made pursuant to the volume
limitations and other requirements set forth in Rule
144 promulgated under the Securities Act.
(b) Each of Weening, CML, Quaestus and Quaestus Partners
agrees, on a several and not joint basis, that it
will not agree to, and will not offer to, at any time
Transfer any Supporting Shareholder Shares owned by
it to an "Affiliate," a "Related Party" or a
"Principal" (as each of those terms is defined in
Buyer's Articles of Incorporation, as amended, in
effect on the date hereof) unless (i) such Transfer
is made by will or intestate succession in the event
of Weening's death, (ii) such transfer is made to an
Affiliate, Related Party or Principal who is already
a party to this Agreement as a Supporting Shareholder
or (iii) in connection with any such Transfer the
transferring Supporting Shareholder has obtained the
agreement of any such transferee(s) to be bound by
the terms of this Agreement in a manner reasonably
acceptable to DBBC. Except with respect to any such
Transfer to an Affiliate, Related Party or Principal
as
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above provided, Weening, CML, Quaestus and Quaestus
Partners may Transfer their Supporting Shareholders
Shares at any time, free of the restrictions of this
Agreement.
(c) No Supporting Shareholder will request that Buyer
register any Transfer (book-entry or otherwise) of
any certificate or uncertificated interest
representing any Supporting Shareholders Shares
unless such Transfer is made in compliance with this
Agreement.
4. Reliance by DBBC. Each of the Supporting Shareholders
understands and acknowledges, on a several and not joint
basis, that DBBC is, contemporaneously herewith, entering into
the Purchase Agreement in reliance upon such Supporting
Shareholder's execution and delivery of this Agreement and the
Supporting Shareholder's representations, warranties and
covenants contained herein. Each Supporting Shareholder
acknowledges and agrees, on a several and not joint basis,
that DBBC is the intended beneficiaries of the
representations, warranties and covenants of the Supporting
Shareholders contained herein.
5. Non-Interference. The Supporting Shareholders will not, except
as permitted by this Agreement, grant any proxies or powers of
attorney with respect to any of the Supporting Shareholders
Shares that would have the effect of restricting, limiting or
interfering with the performance by the Supporting
Shareholders of their respective obligations under this
Agreement or the transactions contemplated hereby.
6. Representations and Warranties of the Supporting Shareholders.
Each of the Supporting Shareholders, severally and not
jointly, hereby represents and warrants to DBBC with respect
to itself only:
(a) Capacity; Authority. Each Supporting Shareholder, if
a natural person, has the capacity necessary to enter
into this Agreement and to carry out the transactions
contemplated hereby. Each Supporting Shareholder, if
not a natural person, has all necessary power and
authority to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement
has been duly and validly executed and delivered by
each Supporting Shareholder and constitutes a legal,
valid and binding obligation of each Supporting
Shareholder, enforceable against it in accordance
with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, receivership or similar laws
affecting the enforcement of creditors' rights
generally and except that the availability of the
equitable remedy of specific performance or
injunctive relief is subject to the discretion of the
court before which any proceeding may be brought.
(b) No Conflict. The execution and delivery of this
Agreement by each Supporting Shareholder does not,
and the performance of this Agreement by it will not,
(i) require any consent or permit of, or filing with
or
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notification to (other than pursuant to the
securities laws), any regulatory authority, (ii)
conflict with any law, order or agreement applicable
to it or by which it or any of its properties or
assets is bound, or (iii) result in the creation of a
lien on any of the Supporting Shareholders Shares
pursuant to any note, bond, mortgage, indenture,
contract, lease, license, permit, franchise or other
instrument or obligation to which it is a party or by
which the Supporting Shareholders Shares are bound.
(c) Title to the Shares. On the date hereof, each
Supporting Shareholder owns the Supporting
Shareholders Shares set forth next to such Supporting
Shareholder's name on Schedule I hereto. The
Supporting Shareholders Shares and other securities
set forth on Schedule I hereto are all the securities
of Buyer owned, either of record or beneficially, by
the Supporting Shareholders. Except for any
restrictions arising under this Agreement, each
Supporting Shareholder (i) has sole voting power and
sole power to issue instructions with respect to the
matters set forth in this Agreement, sole power of
disposition, sole power of conversion, sole power to
demand appraisal rights (if any) and sole power to
agree to each of the matters set forth in this
Agreement, in each case with respect to all of such
Supporting Shareholder's Supporting Shareholders
Shares with no limitations, qualifications or
restrictions on such rights, subject to applicable
securities laws and the terms of this Agreement, (ii)
owns all the Supporting Shareholders Shares set forth
next to such Supporting Shareholder's name on
Schedule I hereto, and (iii) the Supporting
Shareholders have not appointed or granted any proxy,
which appointment or grant is still effective, with
respect to the Supporting Shareholders Shares.
7. Miscellaneous.
(a) Termination. This Agreement will terminate and will
have no further force or effect as of the Termination
Date. For the purposes of this Agreement,
"Termination Date" means the earlier of one day after
(i) the termination of the Purchase Agreement in
accordance with its terms, (ii) the Closing Date or
(iii) one year from the date of this Agreement.
(b) Enforcement. The Supporting Shareholders hereto agree
that (i) irreparable damage would occur in the event
any of the provisions of this Agreement were not
performed in accordance with the terms hereof and
(ii) DBBC will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and
to specific performance of the terms hereof, in
addition to any other remedy to which they may be
entitled at law or in equity. All rights, powers and
remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity will
be cumulative and not alternative, and the exercise
of any right, power or remedy by any party will not
preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
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(c) Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to
the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral,
between the parties with respect to the subject
matter hereof.
(d) Assignment. This Agreement may not be assigned, by
operation of law or otherwise, without the prior
written consent of the parties, and any such
assignment or delegation that is not consented to
will be null and void.
(e) Obligations of Successors; Parties in Interest. This
Agreement will be binding upon, inure solely to the
benefit of, and be enforceable by, the successors and
permitted assigns of the parties hereto. Nothing in
this Agreement, express or implied, is intended to or
will confer upon any other Person, other than DBBC,
any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
(f) Severability. Any provision of this Agreement which
is rendered unenforceable by a court of competent
jurisdiction will be ineffective only to the extent
of such prohibition or invalidity and will not
invalidate or otherwise render ineffective any or all
of the remaining provisions of this Agreement.
(g) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of
Georgia (regardless of the laws that might otherwise
govern under applicable Georgia principles of
conflicts of law) as to all matters, including, but
not limited to, matters of validity, construction,
effect, performance and remedies.
(h) Headings. The descriptive headings contained in this
Agreement are included for convenience of reference
only and will not affect in any way the meaning or
interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in two
or more counterparts, and by the different parties
hereto in separate counterparts, each of which when
executed will be deemed to be an original, but all of
which taken together will be one and the same
agreement.
[SIGNATURES ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
DBBC, L.L.C.
By: /s/ Lewis W. Dickey, Jr.
--------------------------------------
Name: Lewis W. Dickey, Jr.
Title: President
CUMULUS MEDIA INC.
By: /s/ Lewis W. Dickey, Jr.
--------------------------------------
Lewis W. Dickey, Jr. Chairman and CEO
/s/ Lewis W. Dickey, Jr.
-----------------------------------------
LEWIS W. DICKEY, JR.
/s/ John W. Dickey
-----------------------------------------
JOHN W. DICKEY
DBBC OF GEORGIA, L.L.C.
By: /s/ Lewis W. Dickey, Jr.
--------------------------------------
Lewis W. Dickey, Jr., President
/s/ Richard W. Weening
-----------------------------------------
RICHARD W. WEENING
CML HOLDINGS, LLC
By: Quaestus Management Corporation
By: /s/ Richard W. Weening
-------------------------------------
Richard W. Weening, President
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QUAESTUS MANAGEMENT CORPORATION
By: /s/ Richard W. Weening
-------------------------------------
Richard W. Weening, President
QUAESTUS PARTNERS FUND
By: Quaestus Management Corporation
By: /s/ Richard W. Weening
-----------------------------
Richard W. Weening, President
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SCHEDULE I
SUPPORTING SHAREHOLDERS SHARES
- ------------------------------------ ---------------------- -------------------
Class A Class C
Common Stock Common Stock
- ------------------------------------ ---------------------- -------------------
Lewis W. Dickey, Jr. 66,740 128,000
- ------------------------------------ ---------------------- -------------------
John W. Dickey 72,000 --
- ------------------------------------ ---------------------- -------------------
DBBC of Georgia, LLC 95,000 291,542
- ------------------------------------ ---------------------- -------------------
CML Holdings, LLC 851,100 872,422
- ------------------------------------ ---------------------- -------------------
Richard W. Weening 130,000 --
- ------------------------------------ ---------------------- -------------------
Quaestus Management Corporation 201,000 237,313
- ------------------------------------ ---------------------- -------------------
Quaestus Partner Fund 100,000 --
- ------------------------------------ ---------------------- -------------------
SCHEDULE 1