EXHIBIT 10.1
CUMULUS MEDIA INC.
RESTRICTED SHARES AGREEMENT
WHEREAS, Lewis W. Dickey, Jr. ("GRANTEE") is an employee of Cumulus Media
Inc. (the "COMPANY"); and
WHEREAS, the grant of restricted shares evidenced hereby was authorized by
a resolution of the Compensation Committee (the "COMMITTEE") of the Board of
Directors (the "BOARD") of the Company that was duly adopted on April 25, 2005.
NOW, THEREFORE, pursuant to Cumulus Media Inc. 2004 Equity Incentive Plan
(the "PLAN") and subject to the terms and conditions thereof and the terms and
conditions hereinafter set forth, the Company hereby grants to Grantee,
effective as of April 25, 2005 (the "DATE OF GRANT"), the right to receive two
hundred and fifty thousand (250,000) shares of the Company's Class A Common
Stock, par value $.01 per share (the "COMMON SHARES," of which, in accordance
with the terms of the Second Amended and Restated Employment Agreement, dated
October 14, 2004, between Grantee and the Company (the "EMPLOYMENT AGREEMENT"),
125,000 shares shall be "TIME-VESTED RESTRICTED SHARES" and 125,000 shares shall
be "PERFORMANCE RESTRICTED SHARES").
1. Rights of Grantee. The Common Shares subject to this grant shall be fully
paid and nonassessable and shall be represented by a certificate or
certificates registered in Grantee's name and endorsed with an appropriate
legend referring to the restrictions hereinafter set forth. Grantee shall
have all the rights of a stockholder with respect to such shares,
including the right to vote the shares and receive all dividends paid
thereon, provided that such shares, and any additional shares that Grantee
may become entitled to receive by virtue of a share dividend, a merger or
reorganization in which the Company is the surviving corporation or any
other change in the capital structure of the Company, shall be subject to
the restrictions hereinafter set forth.
2. Restrictions on Transfer of Common Shares. The Common Shares subject to
this grant may not be assigned, exchanged, pledged, sold, transferred or
otherwise disposed of by Grantee, except to the Company, until the Common
Shares have become nonforfeitable in accordance with Section 3 hereof;
provided, however, that Grantee's rights with respect to such Common
Shares may be transferred by will or pursuant to the laws of descent and
distribution. Any purported transfer in violation of the provisions of
this Section 2 shall be null and void, and the purported transferee shall
obtain no rights with respect to such shares.
3. Vesting of Common Shares.
(a) Time-Vested Restricted Shares. Subject to the terms and conditions
of Sections 3(c), 3(d) and 4 hereof, Grantee's right to receive the
Time-Vested Restricted Shares covered by this agreement shall become
nonforfeitable to the extent of (i) one-half (1/2) of the
Time-Vested Restricted Shares covered by this agreement after
Grantee shall have been in the continuous employ of the Company or a
subsidiary for two full years from the Date of Grant, and (ii) an
additional one-
eighth (1/8) thereof after each of the next eight (8) successive
calendar quarters thereafter during which Grantee shall have been in
the continuous employ of the Company or a subsidiary. For purposes
of this agreement, "SUBSIDIARY" shall mean a corporation,
partnership, joint venture, unincorporated association or other
entity in which the Company has a direct or indirect ownership or
other equity interest. For purposes of this agreement, the
continuous employment of Grantee with the Company or a subsidiary
shall not be deemed to have been interrupted, and Grantee shall not
be deemed to have ceased to be an employee of the Company or a
subsidiary, by reason of the transfer of his employment among the
Company and its subsidiaries.
(b) Performance Restricted Shares. Subject to the terms and conditions
of Sections 3(c), 3(d) and 4 hereof, Grantee's right to receive the
Performance Restricted Shares covered by this agreement shall become
nonforfeitable to the extent of (i) one-half (1/2) of the
Performance Restricted Shares covered by this agreement upon
achievement of the Board-approved EBITDA budgeting goal for fiscal
year 2005 and continuous employment for two (2) years from the Date
of Grant, and (ii) the remaining one-half (1/2) of the Performance
Restricted Shares covered by this agreement upon achievement of the
Board-approved EBITDA budgeting goal for fiscal year 2006 and
continuous employment for two (2) years from the Date of Grant;
provided, however, that, to the extent Grantee's right to receive
Performance Restricted Shares (or any portion thereof) remains
forfeitable after two (2) years from the Date of Grant, such right
shall, in any event, become nonforfeitable upon the eighth (8th)
anniversary of the Date of Grant, provided Grantee shall have been
in the continuous employ of the Company or a subsidiary through such
date.
(c) Notwithstanding the provisions of Sections 3(a) and 3(b) hereof, and
unless otherwise provided for in the Employment Agreement, upon
Grantee's death or disability (as defined in the Employment
Agreement) while in the employ of the Company or any subsidiary,
Grantee's right to receive the Common Shares covered by this award
shall become nonforfeitable immediately upon Grantee's death or
disability.
(d) Notwithstanding the provisions of Sections 3(a) and 3(b) hereof,
Grantee's right to receive the Common Shares covered by this
agreement shall become nonforfeitable upon any Change in Control (as
defined in the Employment Agreement) of the Company that shall occur
while Grantee is an employee of the Company or a subsidiary.
4. Forfeiture of Awards. Except as otherwise provided for in the Employment
Agreement, Grantee's right to receive the Common Shares covered by this
agreement that are then forfeitable shall be forfeited automatically and
without further notice on the date that Grantee ceases to be an employee
of the Company or a subsidiary prior to the fourth anniversary of the Date
of Grant for any reason other than as described in Section 3(c). Except as
otherwise provided for in the Employment Agreement, in the event that
Grantee shall intentionally commit an act that the Committee determines to
be materially
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adverse to the interests of the Company or a subsidiary, Grantee's right
to receive the Common Shares covered by this agreement shall be forfeited
at the time of that determination notwithstanding any other provision of
this agreement.
5. Retention of Certificates. During the period in which the restrictions on
transfer and risk of forfeiture provided in Sections 2 and 4 above are in
effect, the certificates representing the Common Shares covered by this
grant shall be retained by the Company, together with the accompanying
stock power signed by Grantee and endorsed in blank.
6. Compliance with Law. The Company shall make reasonable efforts to comply
with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this agreement, the Company shall
not be obligated to issue any of the Common Shares covered by this
agreement if the issuance thereof would result in violation of any such
law. To the extent that the Georgia Securities Act of 1973, as amended,
shall be applicable to this agreement, the Company shall not be obligated
to issue any of the Common Shares or other securities covered by this
agreement unless such Common Shares are (a) exempt from registration
thereunder, (b) the subject of a transaction that is exempt from
compliance therewith, (c) registered by description or qualification
thereunder or (d) the subject of a transaction that shall have been
registered by description thereunder.
7. Adjustments. The Committee shall make any adjustments in the number or
kind of shares of stock or other securities covered by this agreement that
the Committee may determine to be equitably required to prevent any
dilution or expansion of Grantee's rights under this agreement that
otherwise would result from any (a) stock dividend, stock split,
combination of shares, recapitalization or other change in the capital
structure of the Company, (b) merger, consolidation, separation,
reorganization or partial or complete liquidation involving the Company or
(c) other transaction or event having an effect similar to any of those
referred to in Section 7(a) or 7(b) hereof. Furthermore, in the event that
any transaction or event described or referred to in the immediately
preceding sentence shall occur, the Committee may provide in substitution
of any or all of Grantee's rights under this agreement such alternative
consideration as the Committee may determine in good faith to be equitable
under the circumstances.
8. Withholding Taxes. To the extent that the Company is required to withhold
federal, state, local or foreign taxes in connection with any delivery of
Common Shares to the Grantee, and the amounts available to the Company for
such withholding are insufficient, it shall be a condition to the receipt
of such delivery that the Grantee make arrangements satisfactory to the
Company for payment of the balance of such taxes required to be withheld.
The Grantee may elect that all or any part of such withholding requirement
be satisfied by retention by the Company of a portion of the Common Shares
delivered to the Grantee. If such election is made, the shares so retained
shall be credited against such withholding requirement at the Market Price
per Common Share on the date of such delivery. In no event, however, shall
the Company accept Common Shares for payment of taxes in excess of
required tax withholding rates, except that, unless otherwise determined
by the Committee at any time, the Grantee may surrender Common Shares
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owned for more than six (6) months to satisfy any tax obligations
resulting from any such transaction.
9. Right to Terminate Employment. No provision of this agreement shall limit
in any way whatsoever any right that the Company or a subsidiary may
otherwise have to terminate the employment of Grantee at any time.
10. Relation to Other Benefits. Any economic or other benefit to Grantee under
this agreement or the Plan shall not be taken into account in determining
any benefits to which Grantee may be entitled under any profit-sharing,
retirement or other benefit or compensation plan maintained by the Company
or a subsidiary and shall not affect the amount of any life insurance
coverage available to any beneficiary under any life insurance plan
covering employees of the Company or a subsidiary.
11. Amendments. Any amendment to the Plan shall be deemed to be an amendment
to this agreement to the extent that the amendment is applicable hereto;
provided, however, that no amendment shall adversely affect the rights of
Grantee with respect to the Common Shares or other securities covered by
this agreement without Grantee's consent.
12. Severability. In the event that one or more of the provisions of this
agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable
from the other provisions hereof, and the remaining provisions hereof
shall continue to be valid and fully enforceable.
13. Governing Law. This agreement is made under, and shall be construed in
accordance with, the internal substantive laws of the State of Georgia.
[SIGNATURE PAGE TO FOLLOW]
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This agreement is executed by the Company effective as of this 25th day of
April, 2005.
CUMULUS MEDIA INC.
By /s/ MARTIN R. GAUSVIK
-----------------------------------
Name: Martin R. Gausvik
Title: Executive Vice President, Chief
Financial Officer and Treasuer
The undersigned Grantee hereby acknowledges receipt of an executed
original of this agreement and accepts the right to receive the Common Shares or
other securities covered hereby, subject to the terms and conditions of the Plan
and the terms and conditions herein above set forth.
/s/ LEWIS W. DICKEY, JR.
------------------------
Grantee
Date: April 29, 2005
[signature page to restricted share agreement]