THIS VOTING
AGREEMENT (this “ Agreement ”) is made as of
January 6, 2009 (the “ Effective Date ”),
by and among Cumulus Media, Inc., a Delaware corporation (the
“ Company ”) and the other persons and entity
executing this Agreement.
Since June 2,
2008, the Company has repurchased 2,967,949 shares of Company
Common Stock in the open market and may repurchase additional
shares in the future. The parties hereto wish to provide that
(a) the enhanced voting power of the Dickey Stockholders
resulting from the Company’s stock repurchases shall inure to
the benefit of the Non-Dickey Stockholders and
(b) transactions between the Company and the Dickey
Stockholders shall be approved by (i) a majority of the
disinterested directors and, if subject to stockholder vote,
(ii) a majority of the votes that are then cast or entitled to
be cast (as determined by the Independent Directors from time to
time) with respect to the shares of Company Common Stock owned by
the Non-Dickey Stockholders.
NOW, THEREFORE, in
consideration of the mutual promises and agreements hereinafter set
forth, and for One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby promise and agree as
follows:
ARTICLE 1
CERTAIN DEFINITIONS
(a) “
Affiliate ” shall be defined as set forth in
Rule 144 promulgated under the Securities Act of 1933, as
amended.
(b) “
Aggregate Company Vote ” at a particular time means
the total number of votes that are then entitled to be cast with
respect to all of the outstanding shares of Company Common
Stock.
(c) “
Company Common Stock ” means the Class A Common
Stock, Class B Common Stock, and Class C Common Stock of
the Company, each with a par value per share of $.01.
(d) “
Company Enhanced Voting Position ” means the portion
of the voting power of the Company Common Stock held by the Dickey
Stockholders (expressed as a number of shares) resulting solely
from the Company’s repurchases of shares of Common Stock
beginning June 2, 2008 and continuing thereafter pursuant to
Repurchase Programs and the corresponding reduction in the
aggregate outstanding voting shares of the Company. The Company
Enhanced Voting Position at a particular time is equal to
(i) the Aggregate Company Vote multiplied by (ii) the
difference between (A) the Current Dickey Stockholders Vote
divided by the Aggregate Company Vote, and (B) the Current Dickey
Stockholders Vote divided by the sum of the Aggregate Company Vote
and the number of shares repurchased by the Company pursuant to
Repurchase Programs beginning June 2,
2008. For the
avoidance of doubt, the equation to calculate the Company Enhanced
Voting Position is set forth on Exhibit A
hereto.
(e) “
Current Dickey Stockholders Vote ” at a particular
time means the aggregate number of votes that are then entitled to
be cast with respect to the shares of Company Common Stock owned by
the Dickey Stockholders.
(f) “
Dickey Related Transaction ” means any contract or
transaction between the Company or any of its controlled Affiliates
and (i) one or more of the Dickey Stockholders, or
(ii) any other corporation, partnership, association or other
organization in which one or more of the Dickey Stockholders has a
financial interest.
(g) “
Dickey Stockholders ” means Lewis W. Dickey, Sr.,
Lewis W. Dickey, Jr., John W. Dickey, David W. Dickey, Michael W.
Dickey, DBBC, LLC, and any entity controlled by or under common
control with any of the foregoing persons or entity.
(h) “
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
(i) “
Independent Director ” means any member of the Board
of Directors of the Company who is not at such time (i) a
Dickey Stockholder, (ii) an Affiliate of a Dickey Stockholder
, (iii) an officer of the Company, (iv) with
respect to the particular matter, an interested director under
Section 144 of the General Corporation Law of the State of
Delaware, as amended, or any successor provision thereto, or
(v) with respect to the particular matter, a person determined
by the Board of Directors of the Company not to be
independent.
(j) “
Non-Dickey Stockholders ” means all stockholders of
the Company other than the Dickey Stockholders.
(k) “
Repurchase Programs ” means (i) the program for
the Company to repurchase, from time to time, up to
$75 million of its Class A Common Stock, as authorized by
the Board of Directors of the Company on May 21, 2008, and
(ii) any other stock repurchase programs approved by the Board
of Directors of the Company in the future. Repurchase Programs do
not include stock repurchases by the Company pursuant to stock
incentive plans or agreements, employment agreements and similar
repurchases. The Independent Directors shall determine whether any
repurchase is pursuant to a Repurchase Program, and such
determination shall be conclusive.
ARTICLE 2
AGREEMENT TO VOTE
Section 2.1 Agreement to Vote; Irrevocable Proxy
.
(a) From and after
the Effective Date and until the Termination Date, and except, as
to Lewis W. Dickey, Jr., to the extent inconsistent with that
certain Voting Agreement made as of June 30, 1998 among the
Company, Lewis W. Dickey, Jr. and the other parties thereto (the
“ 1998 Voting Agreement ”), at any meeting of
the Company’s stockholders, and at every adjournment or
postponement thereof, however called, or in connection with a
written
-2-
consent of the
Company’s stockholders, or in any other circumstances upon
which a vote or other approval of the Company’s stockholders
is sought with respect to any matter, each of the Dickey
Stockholders shall vote, or cause to be voted, including by
execution and delivery of a written consent if applicable, as to
such matter a number of votes of Company Common Stock owned by such
Dickey Stockholder equal to his or its pro rata portion of the
Company Enhanced Voting Position as of the relevant time (the
“ Enhanced Vote Shares ”) “for,”
“against” and “abstain” in the same
relative proportions as all Non-Dickey Stockholders vote, including
by written consent if applicable, as to such matter. Each Dickey
Stockholder’s pro rata portion of the Company Enhanced Voting
Position shall be equal to such Dickey Stockholder’s pro rata
portion of the Current Dickey Stockholders Vote.
(b) To effect the
foregoing, each Dickey Stockholder hereby appoints the
Company’s General Counsel and the Company’s Chief
Financial Officer, and each of them, with the power to appoint his
substitute, and authorizes each of them to represent and vote or
act by written consent with respect to the Enhanced Vote Shares at
any times in the manner specified in Section 2.1(a) . This
proxy is given to secure the performance of each Dickey Stockholder
under this Agreement. This proxy shall be irrevocable, shall be
deemed to be coupled with an interest sufficient in law to support
an irrevocable proxy and shall revoke any and all prior proxies and
powers of attorney granted by each Dickey Stockholder. This proxy
shall survive the dissolution, bankruptcy, death or incapacity of
each Dickey Stockholder. This proxy shall be automatically revoked
upon termination of this Agreement in accordance with its
terms.
(c) Each Dickey
Stockholder will be present in person or by proxy at each meeting
of the stockholders of the Company so that all shares of Company
Common Stock owned by them are counted for purposes of determining
the presence of a quorum at such meeting.
(d)
Notwithstanding the foregoing in this Section 2.1 , if
with respect to a matter, one of the Dickey Stockholders owns
enough shares of Company Common Stock to vote, or cause to be
voted, including by execution and delivery of a written consent if
applicable, the entire amount of the Enhanced Vote Shares, he or it
may do so, and if he or it does so, the other Dickey Stockholders
and their shares of Company Common Stock will not be subject to
Section 2.1(a) or Section 2.1(b) with respect to
such matter.
Section 2.2 Approval of Dickey Related
Transactions . The Dickey Stockholders shall not enter into
a Dickey Related Transaction unless it has been approved by the
affirmative vote of a majority
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