EXHIBIT 10.18
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of March __, 2002, between Cumulus Media Inc., an Illinois
corporation (the "COMPANY"), and DBBC, L.L.C., A Georgia limited liability
company (the "SELLER").
RECITALS
WHEREAS, pursuant to the terms of that certain Agreement and Plan of
Merger, dated December 14, 2001, by and among the Company and certain other
parties, including the Seller, (the "ACQUISITION AGREEMENT"), as assigned
pursuant to the Assignment and Assumption, dated March ___, 2002 (the
"Assignment and Assumption") under which the Company assigned all of its rights
under the Acquisition Agreement to Cumulus Broadcasting, Inc., a Nevada
corporation ("Cumulus Broadcasting") and Cumulus Broadcasting assumed all
obligations of the Company under the Acquisition Agreement, Cumulus Broadcasting
will acquire from Seller (the "ACQUISITION") certain assets and subsidiaries of
Seller;
WHEREAS, a portion of the consideration to Seller for the Acquisition
is 5,250,000 shares, as such number may be increased or decreased pursuant to
the Acquisition Agreement (the "SHARES") of the Company's Class A Common Stock,
par value $.01 per share ("CLASS A COMMON STOCK") and warrants (the "WARRANTS")
to purchase shares of Class A Common Stock;
WHEREAS, the Company has agreed to provide certain registration rights
to Seller with respect to the Shares and the Warrant Shares (as defined below);
and
WHEREAS, the Company and the Seller 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 the Seller agree as follows:
1. DEFINITIONS.
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.
"CLASS A COMMON STOCK" has the meaning set forth in the
recitals.
"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
2(b)(i).
"DEMAND REGISTRATION" has the meaning set forth in Section
2(a)(i).
"DEMAND REGISTRATION STATEMENT" means a registration statement
filed by the Company with the SEC pursuant to Section 2 hereof, 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.
"DEMAND SHARES REGISTRATION PERIOD" has the meaning set forth
in Section 2(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) Seller or (ii) a transferee to whom
registration rights granted pursuant to this Agreement are assigned
pursuant to Section 6(a) hereof.
"INDEMNIFIED PARTY" has the meaning set forth in Section 4(c).
"INDEMNIFYING PARTY" has the meaning set forth in Section
4(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
5.
"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
2(b)(i).
"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 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 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
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permitted by the proviso to the last sentence of Section 6(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 any ninety (90) day
period, in the opinion of counsel satisfactory to the Company and such
Holder, each in their reasonable judgment, pursuant to Rule 144 of the
Securities Act (including Rule 144(k)), (iii) have been transferred to
someone other than a Holder or an assignee of a Holder permitted under
Section 6(a), 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, and (vi) all underwriter
expenses (but specifically excluding underwriter discounts and
commissions) customarily paid by issuers or sellers of securities;
PROVIDED, HOWEVER, that Registration Expenses shall not include fees,
disbursements and other costs of counsel acting on behalf of the
Holders of Registrable Securities.
"REGISTRATION STATEMENTS" means the Demand Registration
Statement and any other registration statement prepared and filed with
the SEC pursuant to Section 2 hereof.
"REQUISITE HOLDERS" means the Holder or Holders of at least
50% of the Registrable Securities.
"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.
"SHARES" has the meaning set forth in the recitals.
"THIRD PARTY REGISTRATION" has the meaning set forth in
Section 2(b)(i).
"WARRANT SHARES" means the shares of Class A Common Stock
acquired by the Holders upon exercise of the Warrants.
"WARRANTS" has the meaning set forth in the recitals.
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2. REGISTRATION RIGHTS OF THE REQUISITE HOLDERS.
(a) DEMAND REGISTRATION RIGHTS OF THE REQUISITE HOLDERS.
(i) RIGHT TO DEMAND. Commencing on the date of this
Agreement, the Requisite Holders shall have the right, exercisable by
written notice to the Company to request that the Company effect the
registration under the Securities Act of all or part of the Registrable
Securities held by the Requisite Holders (a "DEMAND REGISTRATION").
Whenever the Company shall, pursuant to this Section 2(a), be requested
by the Requisite Holders to effect the registration of any Registrable
Securities under the Securities Act, the Company shall promptly give
written notice of such proposed registration to each other Holder of
Registrable Securities, stating that such Holders have the right to
request that any or all of the Registrable Securities owned by them be
included in such registration. The Company shall include in such
registration all Registrable Securities with respect to which the
Company receives written requests pursuant to the preceding sentence
from the Holders thereof for inclusion therein; and thereupon the
Company will 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 2(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. The
Holders of Registrable Securities shall be entitled to require the
Company to register Registrable Securities pursuant to the provisions
of Section 2(a) hereof not more than one time; PROVIDED, HOWEVER, that
if, pursuant to Section 2(a)(iii), less than fifty percent (50%) of the
number of Registrable Securities requested by the Holders of
Registrable Securities to be included in a Demand Registration are in
fact included then the Holders of Registrable Securities shall be
entitled to a second Demand Registration pursuant to the provisions of
Section 2(a) hereof.
(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 the
Requisite Holders, which approval shall not be unreasonably withheld;
PROVIDED, HOWEVER, that the Requisite Holders 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 the
Requisite Holders that, in its opinion, the number of Registrable
Securities requested to be included in a Demand Registration exceeds
what can be sold in such offering without a material adverse effect on
the offering, then the Company will advise the Requisite Holders 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
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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 securities requested to be included in such
Demand Registration which the managing underwriter advises the Company
can be sold in such offering. If the Requisite Holders disapproves of
the number of reduced Registrable Securities that can be included on
behalf of the Requisite Holders, the Requisite Holders may elect to
withdraw therefrom by written notice to the Company and the
underwriter.
(iv) 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, and (ii) give the Holders of the
Registrable Securities to be included in such Registration Statement
and their representatives 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 Section 2(a)(i), the Company may
include in such registration any other equity securities of the
Company. A Demand Registration pursuant to this Section 2(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 Statement 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 registrations of Registrable Securities 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
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such Holder. Upon receipt of such request, the Company will use all
commercially reasonable efforts to register under the Securities Act
all Registrable Securities which the Company 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 2(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 2(b) shall relieve the Company of its obligation to effect
any Demand Registration upon request under Section 2(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 other securities proposed to be
included in such Piggyback Registration as a result of the exercise of
any piggyback registration rights that are prior in right to the
piggyback registration rights of the Holders of Registrable Securities
granted hereunder; fourth, 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 fifth,
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 2(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)).
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(c) REGISTRATION PERIOD. The Company shall use commercially
reasonable efforts to cause any Registration Statement filed pursuant to Section
2(a) to be declared effective by the SEC as promptly as practicable after filing
and (subject to Sections 3(d) and 5 hereof) to remain effective until the
earlier of (1) such time as all securities registered thereunder have been
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 2, 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.
3. REGISTRATION PROCEDURES.
(a) In connection with the obligations of the Company with
respect to the Demand Registration Statement, the Company shall:
(i) prepare and file with the SEC the Registration
Statement 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 Statement 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 Demand Shares 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;
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(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 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
Demand Shares 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
3(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
Statement;
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(viii) upon the occurrence of any event during the
Demand Shares Registration Period that makes any statement made in the
Registration Statement or the related Prospectus untrue in any material
respect or that requires the making of any changes in the Registration
Statement or the related 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
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 commercially reasonable 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 Holder
authorizes the Company to include such information (without independently
9
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 by such Holder 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
3(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 3(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 3(a)(viii), it will not disclose such fact to any Person.
4. 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
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to state therein a material fact required 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 in
writing specifically 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 4(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 in writing specifically for use in the preparation of such Registration
Statement. 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.
(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
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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.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 4 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
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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 4 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 4
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.
5. 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 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 5 during which the Company is
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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.
6. 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.
(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 the Holders of Registrable
Securities granted hereunder as long as the provisions of Section 2 hereof are
complied with at all times during which the registration rights provided to the
Holders of Registrable Securities under Section 2 are in effect and have not
been terminated in accordance with Section 2 hereof.
(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 4 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
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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 Seller:
DBBC, L.L.C.
10 Music Circle East
Nashville, Tennessee 37203
Attention: President
Telephone: 615-321-1067
Telecopier: 615-321-5808
With a copy to:
Dickstein, Shapiro, Morin & Oshinsky, LLP
2101 L Street, N.W.
Washington, DC 20037-1526
Attention: Mr. Lewis J. Paper
Telephone: 202-828-2265
Telecopier: 202-887-0689
If to the Company:
Cumulus Media Inc.
3535 Piedmont Road
Building 14, 14th Floor
Atlanta, Georgia 30305
Attention: Chief Executive Officer
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 their permitted assigns and the Company and its
successors.
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(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.
(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CUMULUS MEDIA INC.
By:/s/ MARTIN R. GAUSVIK
---------------------------------------
Name: Martin R. Gausvik
---------------------------------------
Title: Executive Vice President and
Chief Financial Officer
---------------------------------------
DBBC, L.L.C.
By: /s/ LEWIS W. DICKEY, JR.
---------------------------------------
Name: Lewis W. Dickey, Jr.
---------------------------------------
Title: President and Manager
---------------------------------------
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