Exhibit 10.1
EXECUTION COPY
TERMINATION AGREEMENT AND RELEASE
This TERMINATION AGREEMENT AND
RELEASE, dated as of May 11, 2008 (this “ Agreement
”), is entered into by and among Cloud Acquisition
Corporation, a Delaware corporation (“ Parent
”), Cloud Merger Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent (“ Merger Sub
”), Cumulus Media Inc., a Delaware corporation (the “
Company ”) and, for purposes of Section 3(b) only, ML
IBK Positions, Inc. (the “ Guarantor ”). Each of
the foregoing are collectively referred to herein as the “
Parties ” and each individually as a “
Party ”. Capitalized terms used but not defined in
this Agreement shall have the respective meanings given to them in
the Merger Agreement (as defined below).
RECITALS
A. On July 23, 2007,
Parent, Merger Sub, and the Company executed an Agreement and Plan
of Merger (the “ Merger Agreement ”), pursuant
to which Merger Sub would merge with and into the Company, with the
Company surviving such merger.
B. The Parties desire to
terminate the Merger Agreement and to be bound by the other
provisions set forth below.
AGREEMENT
Therefore, the Parties hereto hereby
agree as follows:
1. Termination of Merger
Agreement . Effective immediately, the Merger Agreement shall
be terminated and none of the provisions of the Merger Agreement
shall be of any further force or effect as of such time, including,
without limitation, provisions of the Merger Agreement which by
their terms would otherwise have survived the termination of the
Merger Agreement.
2. Termination of Other
Transaction Documents . The Parties acknowledge and agree that
( a ) the Equity Financing Commitment, the Equity Rollover
Commitments and the Voting Agreements shall be automatically
terminated without further action on the part of the parties to the
Equity Financing Commitment, the Equity Rollover Commitments and
the Voting Agreements and ( b ) the Debt Financing
Commitment shall be terminated pursuant to a letter agreement by
and among the parties to the Debt Financing Commitment. The Parties
further acknowledge and agree that (x) none of the provisions
of the Equity Financing Commitment, the Equity Rollover Commitments
and the Voting Agreements shall be of any further force or effect
as of such time, including, without limitation, provisions of the
Equity Financing Commitment, the Equity Rollover Commitments and
the Voting Agreements, as the case may be, that by their terms
would otherwise have survived the termination of the Equity
Financing Commitment, Equity Rollover Commitments and the Voting
Agreements, as the case may be and (y) the provisions of the
Debt Financing Commitment shall only have any further force and
effect to the extent expressly provided in the letter agreement
referred to in clause (b) of the immediately preceding
sentence .
3. Reverse Termination Fee
Payment; Termination of Limited Guarantee .
(a)
Reverse Termination Fee Payment . Promptly following the
execution of this Agreement (and in any event on May 12, 2008),
Parent shall pay, or cause to be paid, to the Company $15 million
in the aggregate (the “ Reverse Termination Fee
Payment ”) by wire transfer of immediately available
funds to the account specified in Exhibit A
hereto.
(b)
Limited Guarantee . Effective immediately, the Reverse
Termination Fee Payment shall be deemed to be the Obligation (as
such term is defined in the Limited Guarantee) and Section 1 of the
Limited Guarantee shall be deemed amended accordingly. Effective
immediately upon receipt of the Reverse Termination Fee Payment by
the Company, the Limited Guarantee will automatically terminate
(without further action on the part of the parties to the Limited
Guarantee) and none of the provisions of the Limited Guarantee
shall be of any further force or effect as of such time, including,
without limitation, provisions of the Limited Guarantee that by
their terms would otherwise have survived the termination of the
Limited Guarantee.
4. Mutual Release; Covenant
Not to Sue .
(a) Each
Party, for and on behalf of itself and its Related Parties, does
hereby unequivocally release and discharge, and hold harmless, each
other Party and any of their respective former, current or future
officers, directors, agents, advisors, representatives, managers,
members, partners, shareholders, employees, subsidiaries, financing
sources, affiliates (including, without limitation, controlling
persons), officers, directors, members, managers and employees of
affiliates (including without limitation, Contributing
Stockholders), principals, and any heirs, executors,
administrators, successors or assigns of any said person or entity
(the “ Related Parties ”), from any and all
past, present, direct, indirect, and derivative liabilities,
actions, causes of action, cases, claims, suits, debts, dues, sums
of money, attorney’s fees, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, injuries, harms,
damages, judgments, remedies, extents, executions, demands, liens
and damages of every kind and nature, in law, equity or otherwise,
asserted or that could have been asserted, under federal or state
statute, or common law, known or unknown, suspected or unsuspected,
foreseen or unforeseen, anticipated or unanticipated, whether or
not concealed or hidden, from the beginning of time until the date
of execution of this Agreement (collectively, “
Actions ”), that in any way arises from or out of, are
based upon, or are in connection with or relate to ( i ) the
Merger Agreement, the Equity Financing Commitment, the Equity
Rollover Commitments, the Voting Agreements, the Debt Financing
Commitment and the Limited Guarantee and the other agreements and
documents contemplated hereby or thereby (collectively, the “
Transaction Documents ”), ( ii ) any breach,
non-performance, action or failure to act under the Transaction
Documents and ( iii ) the proposed Merger, including the
events leading to the abandonment of the Merger and the termination
of the Merger Agreement or any other Transaction Documents
(collectively, the “ Released Claims ”);
provided , however , that ( A ) no Party
shall be released from any breach, non-performance, action or
failure to act under this Agreement and ( B ) the parties to
the Limited Guarantee shall not be released from any breach,
non-performance, action or failure to act under the Limited
Guarantee until the Limited Guarantee is terminated in accordance
with Section 3(b) above.
(b) It
is understood and agreed that, except as provided in the proviso to
Section 4(a), the preceding paragraph is a full and final
release covering all known as well as unknown or unanticipated
debts, claims or damages of the Parties and their Related Parties
relating to or arising out of the Transaction Documents. Therefore,
each of the Parties expressly waives any rights it may have under
any statute or common law principle under which a general release
does not extend to claims which such Party does not know or suspect
to exist in its favor at the time of executing the release, which
if known by such Party must have affected such Party’s
settlement with the other. In connection with such waiver and
relinquishment, the Parties acknowledge that they or their
attorneys or agents may hereafter discover claims or facts in
addition to or different from those which they now know or believe
to exist with respect to the Released Claims, but that it is their
intention hereby fully, finally and forever to settle and release
all of the Released Claims. In furtherance of this intention, the
releases herein given shall be and remain in effect as full and
complete mutual releases with regard to the Released Claims
notwithstanding the discovery or existence of any such additional
or different claim or fact.
(c) Except
as provided in the proviso to Section 4(a), each Party, on
behalf of itself and its Related Parties, hereby covenants to each
other Party and their respective Related Parties not to, with
respect to any Released Claim, directly or indirectly encourage or
solicit or voluntarily assist or participate in any way in the
filing, reporting or prosecution by such Party or its Related
Parties or any third party of a suit, arbitration, mediation, or
claim (including a third party or derivative claim) against any
other Party and/or its Related Parties relating to any Released
Claim. The covenants contained in this Section 4 shall survive
this Agreement indefinitely regardless of any statute of
limitations.
5. Publicity and
Disclosure . Any general notices, releases, statements or
communications by either Party to the general public or the press
relating to Transaction Documents, the participation or involvement
of the Parties in the transactions contemplated by the Transaction
Documents or the reasons for or any of the events or circumstances
surrounding the termination of the transactions contemplated by the
Merger Agreement shall be made only at such times and in such
manner as may be mutually agreed upon by the Parties, except as
otherwise required by law (and in such case o
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