VOTING AGREEMENT AND CONSENT
Exhibit 99.2
This VOTING AGREEMENT AND CONSENT (this “Agreement”), dated as of January 31, 2011, is
entered into by and among Blackstone FC Communications Partners L.P., a Delaware limited
partnership, in its capacity as the “Sellers’ Representative” under the Exchange Agreement
(as defined below), and the Persons executing this Agreement as “CMI Stockholders” as indicated on
the signature pages hereto (collectively, the “CMI Stockholders”). The Sellers’
Representative and the CMI Stockholders each being hereinafter sometimes referred to as a
“Party” and, collectively, as the “Parties”.
WITNESSETH
WHEREAS, simultaneously with the execution and delivery of this Agreement, Cumulus Media Inc.,
a Delaware corporation (“CMI”), the Sellers’ Representative and the parties indicated
thereto as “Sellers” thereunder have entered into an Exchange Agreement (as in effect on the date
hereof, the “Exchange Agreement”), which provides for, among other things, CMI to exchange
each of the Seller’s equity interests in Cumulus Media Partners, LLC, a Delaware limited liability
company, for shares of Class A Common Stock, par value $0.01 per share, of CMI (the “Class A
Common Stock”), or Class D Common Stock, par value $0.01 per share, of CMI, which shall be
created pursuant to the Charter Amendment (as defined herein) (the “Class D Common Stock”)
as set forth in the Exchange Agreement;
WHEREAS, each CMI Stockholder is the record and Beneficial Owner of, and has the sole right to
vote and dispose of, that number of shares set forth next to such CMI Stockholder’s name on
Schedule A hereto; and
WHEREAS, as an inducement to the Sellers entering into the Exchange Agreement and incurring
the obligations therein, the Sellers have required that each CMI Stockholder, and each CMI
Stockholder has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises, covenants and
agreements contained in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
CERTAIN DEFINITIONS
Section 1.1 Capitalized Terms. Capitalized terms used in this Agreement and not
defined herein have the meanings ascribed to such terms in the Exchange Agreement.
Section 1.2 Other Definitions. For the purposes of this Agreement:
“1998 Registration Rights Agreement” means the Registration Rights Agreement, dated as of June
30, 2008, among CMI and the “Shareholders” party thereto.
“2011 Registration Rights Agreement” means the Registration Rights Agreement as defined in the
Exchange Agreement, substantially in the form attached to this Agreement as Exhibit A.
“Agreement” has the meaning set forth in the Preamble.
“Applicable Period” means the period commencing on the date of this Agreement and ending on
the earlier of (i) the day immediately following the date the directors elected at the third annual
meeting of CMI’s stockholders held following the date of this Agreement commence their terms, (ii)
the date on which the Blackstone Sellers (together with their Permitted Transferees), as a group,
cease to have Beneficial Ownership of at least a simple majority of the shares of CMI Common Stock
issued to the Blackstone Sellers at the Closing pursuant to the Exchange (including any shares of
CMI Common Stock issued upon conversion or exchange of any such shares); provided, that any shares
of CMI Common Stock Beneficially Owned by the Blackstone Sellers and cancelled by CMI pursuant to,
and in accordance with, Article 9 of the Exchange Agreement, shall not be deemed to be shares
issued to the Blackstone Sellers at the Closing pursuant to the Exchange and (iii) the date on
which CMI Stockholders (together with their Permitted Transferees), as a group, cease to have
Beneficial Ownership of at least a simple majority of the shares of CMI Common Stock held by the
CMI Stockholders in the aggregate on the date of Closing (including any shares of CMI Common Stock
issued upon conversion or exchange of any such shares).
“Beneficial Owner” or “Beneficial Ownership”, and similar or correlative terms, with respect
to any securities, means having “beneficial ownership” of such securities (as determined pursuant
to Rule 13d-3 under the Exchange Act), but shall exclude any such beneficial ownership that may be
deemed to be beneficially owned due to the existence of this Agreement or any agreement listed on
Schedule A.
“Blackstone Director” means such individual as may be specified in writing by the Sellers’
Representative to CMI at any time; provided, that as of the date hereof, Xxxxx X. Xxxxxx
shall be the “Blackstone Director” until such time as he is unable or unwilling to serve as a
director of CMI, or until the Seller’s Representative provides written notice to CMI of its desire
to designate a substitute director designee.
“Charter Amendment” means the “Charter Amendment” as defined in the Exchange Agreement,
substantially in the form attached thereto on the date hereof.
“Class A Common Stock” has the meaning set forth in the Recitals.
“Class B Common Stock” means the Class B Common Stock, par value $0.01 per share, of CMI.
“Class C Common Stock” means the Class C Common Stock, par value $0.01 per share, of CMI.
“Class D Common Stock” has the meaning set forth in the Recitals.
“Closing” means the “Closing” as defined in the Exchange Agreement
-2-
“CMI” has the meaning set forth in the Recitals.
“CMI Charter” has the meaning set forth in Section 2.1(b).
“CMI Common Stock” means, collectively, the Class A Common Stock the Class B Common Stock, the
Class C Common Stock, and the Class D Common Stock.
“CMI Stockholders” has the meaning set forth in the Preamble.
“Consent Right Holders” means “Consent Right Holders” as defined in the CMI Charter.
“Exchange Agreement” has the meaning set forth in the Recitals.
“Existing Registration Rights Agreements” means, collectively, the 1998 Registration Rights
Agreement and the January 2002 Registration Rights Agreement.
“Expiration Time” has the meaning set forth in Section 4.1.
“January 2002 Registration Rights Agreement” means the Amended and Restated Registration
Rights Agreement, dated as of January 23, 2002, among CMI, Aurora Communications, LLC, a Delaware
limited liability company, and the other parties indicated thereto as “Sellers.”
“Owned Shares” has the meaning set forth in Section 2.1.
“Party” or “Parties” has the meaning set forth in the Preamble.
“Permitted Transferee” means (a) with respect to the Blackstone Sellers, the transferee of
shares of CMI Common Stock issued to the Blackstone Sellers pursuant to the Exchange Agreement
(including any shares of CMI Common Stock issued upon conversion or exchange of any such shares),
which transferee is an Affiliate of the applicable Blackstone Seller transferor and (b) with
respect to the CMI Stockholders, the transferee of shares of CMI Common Stock held by any CMI
Stockholder (including any shares of CMI Common Stock issued upon conversion or exchange of any
such shares), which transferee is an Affiliate of the applicable CMI Stockholder transferor.
“Sellers’ Representative” has the meaning set forth in the Preamble.
“Shares” means shares of CMI capital stock set forth on Schedule A Beneficially Owned
by the CMI Stockholders or their Permitted Transferees, and will also include for purposes of this
Agreement, in the event of a stock dividend or distribution, or any change in CMI capital stock by
reason of any stock dividend or distribution, stock split, recapitalization, combination,
conversion, exchange of shares or the like, all shares or other voting securities into which Shares
may be reclassified, sub-divided, consolidated, converted, exchanged or received in such
transaction and any rights and benefits arising therefrom, including any dividends or distributions
of securities which may be declared in respect of the Shares and entitled to vote in respect of the
matters contemplated by Article 2.
-3-
“Transfer” means, with respect to a security, the sale, grant, assignment, transfer, pledge,
encumbrance, hypothecation or other disposition of such security or the Beneficial Ownership
thereof (including by operation of law), or the entry into any Contract to effect any of the
foregoing, including, for purposes of this Agreement, the transfer or sharing of any voting power
of such security or other rights in or of such security, the granting of any proxy or power of
attorney with respect to such security, depositing such security into a voting trust or entering
into a voting agreement with respect to such security.
ARTICLE II
AGREEMENT TO VOTE
AGREEMENT TO VOTE
Section 2.1 Agreement to Vote; Written Consent.
(a) Subject to the terms and conditions hereof, each CMI Stockholder irrevocably and
unconditionally agrees that, from and after the date hereof and until the Expiration Time, at any
meeting (whether annual or special, and at each adjourned or postponed meeting) of the CMI
stockholders, however called, or in any other circumstances upon which a vote or other consent or
approval (including a written consent) of CMI stockholders is sought for approval of the matters
described in clause (ii) of this sentence, such CMI Stockholder will (i) appear at each such
meeting, in person or by proxy, or otherwise cause all of such CMI Stockholder’s Shares
Beneficially Owned by such CMI Stockholder as of the relevant time and eligible to vote at each
such meeting or to give such consent (as of each and every meeting of the CMI stockholders (whether
annual or special, and at each adjourned or postponed meeting) and in any other circumstance in
which a vote or other consent or approval (including a written consent) of CMI stockholders is
sought, “Owned Shares”) to be counted as present thereat for purposes of calculating a
quorum, and respond to any other request by CMI for written consent, if any, and, (ii) vote or duly
execute and deliver a consent or approval (or cause to be voted, or a consent or approval to be
duly executed and delivered) with respect to its Owned Shares (x) in favor of the Charter Amendment
(in the form attached to Exchange Agreement), and the approval required by Nasdaq Listing Rule 5635
for issuance of the shares of CMI Common Stock to be issued pursuant to the Exchange and (y)
against any action, proposal, transaction or agreement that would reasonably be expected to
prevent, impede, frustrate, interfere with, delay, postpone or adversely affect the Exchange or the
other transactions contemplated by the Exchange Agreement (including any adjournment or
postponement of any meeting of the CMI Stockholders).
(b) Article V, Section 1(c) of CMI’s Amended and Restated Certificate of Incorporation, as
heretofore amended (the “CMI Charter”), provides that the express written consent of
Consent Right Holders holding a majority of that number of shares of the Company’s Class B Common
Stock, par value $0.01 per share (“Class B Common Stock”), held in the aggregate by all
Consent Right Holders shall be required for the taking of any “Fundamental Action” (as defined in
the CMI Charter). The Charter Amendment constitutes such a Fundamental Action and the other
transactions contemplated by the Exchange Agreement may also be construed to be a “business
combination” constituting a Fundamental Action or an “Affiliate” transaction or acquisition of
assets having a fair market value in excess of ten (10%) percent of the Company’s Stockholders
Equity constituting a Restricted Action. Each of the undersigned CMI Stockholders that is also a
Consent Right Holder or a holder of Class B
-4-
Common Stock hereby gives its express written consent to the transactions contemplated by the
Exchange Agreement for all purposes under the CMI Charter.
(c) Each of the CMI Stockholders that is a holder of “Registrable Securities” under and as
such term is defined in either of the Existing Registration Rights Agreements hereby agrees to the
termination of the Existing Registration Rights Agreements effective as of the Closing and shall,
at the Closing, execute and deliver to each of the other parties thereto, the 2011 Registration
Rights Agreement, which pursuant to its terms shall terminate the Existing Registration Rights
Agreements.
(d) Each CMI Stockholder irrevocably and unconditionally agrees that it shall, during the
Applicable Period, (i) appear in person or by proxy, or otherwise cause all of such CMI
Stockholder’s Owned Shares to be counted as present, for purposes of calculating a quorum at each
annual or special meeting of the stockholders of CMI at which election of the Blackstone Director
to CMI’s board of directors is to be voted upon, (ii) at each such meeting, vote (or cause to be
voted), in person or by proxy, all of the Owned Shares now owned or hereafter acquired by such CMI
Stockholder in favor of the election of the Blackstone Director to CMI’s board of directors, (iii)
in any action by written consent of the holders of CMI Voting Stock for the purpose of electing the
Blackstone Director to CMI’s board of directors, duly execute and deliver a consent or approval (or
cause a consent or approval to be duly executed and delivered) with respect to all of its Owned
Shares now owned or hereafter acquired by such CMI Stockholder to such election of the Blackstone
Director and (iv) not vote or execute a written consent or approval (or cause to be voted, or a
consent or approval to be executed and delivered) with respect to the removal of the Blackstone
Director, unless such CMI Stockholder is directed to do so by the Seller’s Representative, in which
case such CMI Stockholder agrees to vote or duly execute a written consent or approval with respect
to all of its Owned Shares now owned or hereafter acquired by such CMI Stockholder for such removal
of such person and for the election of a replacement Blackstone Director as specified by the
Sellers’ Representative.
Section 2.2 Grant of Irrevocable Proxy.
(a) Each CMI Stockholder hereby irrevocably appoints Seller’s Representative as such CMI
Stockholder’s proxy and attorney-in-fact, with full power of substitution and resubstitution, to
vote or execute any consent or approval with respect to such CMI Stockholder’s Owned Shares now
owned or hereafter acquired by such CMI Stockholder, in respect of the matters described in
Section 2.1(a), until the Expiration Time. This irrevocable proxy is given to secure the
performance of the duties of the CMI Stockholders under this Agreement. None of the CMI
Stockholders shall directly or indirectly grant any person any proxy (revocable or irrevocable),
power of attorney or other authorization with respect to any of its Owned Shares now owned or
hereafter acquired by such CMI Stockholder that is inconsistent with this Agreement.
(b) The proxy and power of attorney granted hereunder by each of the CMI Stockholders shall be
irrevocable, in respect of the matters described in Section 2.1(a), until the Expiration
Time, shall be deemed coupled with an interest sufficient in law to support an irrevocable proxy
and shall revoke any and all prior proxies granted by such CMI Stockholder that is inconsistent
with this Agreement, and each CMI Stockholder acknowledges that this proxy constitutes an
inducement for the Sellers to enter into the Exchange Agreement. The
-5-
power of attorney granted by each of the CMI Stockholders is a durable power of attorney and
shall survive the bankruptcy, death or incapacity any such CMI Stockholder. The proxy and power of
attorney granted hereunder shall terminate automatically, in respect of the matters described in
Section 2.1(a), at the Expiration Time.
Section 2.3 Additional Shares. Each CMI Stockholder hereby agrees that any new Shares
with respect to which Beneficial Ownership is acquired by such CMI Stockholder (including, without
limitation, pursuant to the grant of any shares of CMI capital stock, the exercise of any stock
options or the conversion of any shares of CMI capital stock), if any, after the date hereof and
during the Applicable Period shall automatically become subject to the terms of this Agreement as
Owned Shares (and shall be deemed to be “Owned Shares” for all purposes hereunder) as though
Beneficially Owned by such CMI Stockholder as of the date hereof.
Section 2.4 Restrictions on Transfer, Etc. Except as provided for or permitted herein,
each CMI Stockholder agrees, from the date hereof until the Expiration Time, not to (i) directly or
indirectly Transfer or offer to Transfer any Owned Shares, except to a party who agrees in writing
by the provisions hereof in such form and substance as is reasonably acceptable to Sellers’
Representative; (ii) tender any Owned Shares into any tender or exchange offer or otherwise; (iii)
enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to
such CMI Stockholder’s Owned Shares or (iv) otherwise restrict the ability of such CMI Stockholder
freely to exercise all voting rights with respect thereto. Any action attempted to be taken in
violation of the preceding sentence will be null and void. Notwithstanding the foregoing(a) each
CMI Stockholder may make transfers of Owned Shares to Permitted Transferees, so long as such
Permitted Transferee agrees in writing to be bound by the provisions of this Agreement in such form
and substance as is reasonably acceptable to Sellers’ Representative and (b) if the Closing has not
occurred on or prior to September 30, 2011, the CMI Stockholders may in the aggregate make
transfers of up to five percent (5%) of the Shares held by them in the aggregate on the date
hereof. . For the avoidance of doubt, following the Expiration Time, no CMI Stockholder shall be
restricted under this Agreement in its ability to make transfers of Owned Shares.
Section 2.5 Non-Interference; Further Assurances. Each CMI Stockholder agrees that,
prior to the Expiration Time, such CMI Stockholder shall not take any action that would make any
representation or warranty of such CMI Stockholder contained herein untrue or incorrect in any
material respect or have the effect of preventing, impeding, interfering with or adversely
affecting the performance by such CMI Stockholder of its obligations under this Agreement. Each
CMI Stockholder agrees, without further consideration, until the Expiration Time to execute and
deliver such additional documents and to take such further actions as necessary or reasonably
requested by CMI to confirm and assure the rights and obligations set forth in this Agreement or to
consummate the transactions contemplated by this Agreement; provided, however, that
nothing herein shall require any CMI Stockholders to convert any Shares held by it or to agree to
any modification to the Certificate of Incorporation of CMI (other than the Charter Amendment as
set forth herein) or any agreement to which CMI Stockholder is a party.
-6-
ARTICLE III
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of CMI Stockholders. Each CMI Stockholder,
severally and not jointly, represents and warrants as to itself only and not as to any other CMI
Stockholder to the Sellers’ Representative as of the date of this Agreement and at all times during
the term of this Agreement, as follows:
(a) Such CMI Stockholder has the requisite capacity and all necessary power and authority to
execute and deliver this Agreement and to fulfill and perform such CMI Stockholder’s obligations
hereunder. This Agreement has been duly and validly executed and delivered by such CMI Stockholder
and constitutes a legal, valid and binding agreement of such CMI Stockholder enforceable against
such CMI Stockholder in accordance with its terms.
(b) Such CMI Stockholder or an Affiliate of such CMI Stockholder is the record and Beneficial
Owner, and (except as otherwise disclosed in the CMI Stockholder’s Schedule 13D, together with any
amendments thereto, filed with the Securities and Exchange Commission) has sole and unrestricted
power to vote or duly execute and deliver a consent or approval with respect to, all of such CMI
Stockholder’s Owned Shares set forth next to such CMI Stockholder’s name on Schedule A
hereto without the consent or approval of, or any other action on the part of, any other Person,
and has not granted any proxy, power of attorney or other authorization inconsistent with this
Agreement that is still effective or, except as set forth on Schedule A hereto, entered
into any voting agreement, voting trust agreement or other contract, agreement, arrangement
commitment or understanding with respect to the voting or Transfer of such CMI Stockholder’s Owned
Shares (other than pledges of Owned Shares in support of bona fide debt obligations of the
applicable CMI Stockholder or its Affiliate). The Owned Shares set forth next to such CMI
Stockholder’s name on Schedule A hereto constitute all of the capital stock of CMI that is
Beneficially Owned by such CMI Stockholder as of the date hereof.
(c) Other than the filing of any reports that may be required under Section 13(d) of the
Exchange Act, none of the execution and delivery of this Agreement by such CMI Stockholder, the
consummation by such CMI Stockholder of the transactions contemplated hereby or compliance by such
CMI Stockholder with any of the provisions hereof (i) requires consent or authorization of, filing
with or notification to, any Governmental Authority, by such CMI Stockholder, (ii) results in a
violation or breach of, conflict with, or constitutes (with or without notice or lapse of time or
both) a default (or gives rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions of any
Organizational Document or Contract to which such CMI Stockholder is a party or by which such CMI
Stockholder or any of such CMI Stockholder’s properties or assets (including such CMI Stockholder’s
Owned Shares) may be bound, (iii) violates any Order or Law applicable to such CMI Stockholder or
any of such CMI Stockholder’s properties or assets (including such CMI Stockholder’s Owned Shares),
or (iv) results in a Lien upon any of such CMI Stockholder’s properties or assets (including such
CMI Stockholder’s Owned Shares).
-7-
ARTICLE IV
TERMINATION
TERMINATION
Section 4.1 Termination. This Agreement shall automatically terminate without further
action upon the earliest to occur (the “Expiration Time”) (i) the Closing, (ii) the
termination of the Exchange Agreement in accordance with its terms, (iii) 11:59 p.m. New York, New
York time on December 31, 2011, and (iv) the written agreement of all Parties hereto to terminate
this Agreement. The rights and obligations of all of the Parties will terminate and become void
without further action by any Party except for the provisions of this Article 4, which will
survive such termination. Notwithstanding the foregoing provisions of this Section 4.1, if
the Closing occurs, (i) the consents and waivers set forth in Section 2.1(b) and
Section 2.1(c) shall remain in full force and effect and (ii) the obligations of the
Parties in Section 2.1(d), Section 2.2 and Section 2.3 and the provisions
in Article I, shall, in each of the case of clauses (i) and (ii) survive the Expiration
Time (and the termination of this Agreement as a result thereof) and remain in full force and
effect. The termination of this Agreement shall not relieve any Party of liability for any willful
breach of this Agreement prior to the time of termination.
Section 4.2 Notices. Any notice, request, instruction or other communication under
this Agreement shall be in writing and delivered by hand or overnight courier service or by
facsimile, (i) if to a CMI Stockholder, to the address set forth for such CMI Stockholder on
Schedule A hereto, and (ii) if to the Sellers’ Representative, in accordance with
Section 11.4 of the Exchange Agreement, or to such other Person’s, addresses or facsimile
numbers as may be designated in writing by the Person entitled to receive such communication as
provided above. Each such communication will be effective (A) if delivered by hand or overnight
courier service, when such delivery is made at the address specified in this Section 4.2,
or (B) if delivered by facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section 4.2 and appropriate confirmation is received via telephone or
electronic mail.
Section 4.3 Parties in Interest. Except as set forth in the next sentence and other
than with respect to the Parties to this Agreement, nothing in this Agreement, express or implied,
is intended to or shall confer upon any person any right, benefit, obligation, liability or remedy
of any nature whatsoever under or by reason of this Agreement. The provisions of Section
2.1(b), Section 2.1(c) and Section 4.9 shall inure to the benefit of CMI who is
expressly intended to be a beneficiary thereof. CMI may enforce such provisions contained therein,
and none of such provisions may be amended, modified or waived without the express written consent
of CMI.
Section 4.4 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without giving effect to any applicable
principles of conflict of laws that would cause the Laws of another state otherwise to govern this
Agreement.
Section 4.5 Severability. Any provision of this Agreement which is rendered invalid,
void or otherwise unenforceable by a court of competent jurisdiction shall be ineffective only to
the extent of such prohibition or invalidity and shall not invalidate or otherwise render
ineffective any or all of the remaining provisions of this Agreement. Upon such determination that
any provision of this Agreement is invalid, void or otherwise unenforceable, the affected Parties
shall negotiate in good faith to modify this Agreement so as to effect the original intent of
-8-
the Parties as closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Section 4.6 Assignment. Except as otherwise provided in, and pursuant to, Section 2.4,
neither this Agreement nor any right, interest or obligation hereunder may be assigned by any Party
hereto, in whole or part (whether by operation of law or otherwise), without the prior written
consent of the other Parties hereto and any attempt to do so shall be null and void.
Section 4.7 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the Parties and their respective successors and
permitted assigns.
Section 4.8 Interpretation. The headings in this Agreement are for reference only and
do not affect the meaning or interpretation of this Agreement. Definitions apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
includes the corresponding masculine, feminine and neuter forms. All references in this Agreement
to Articles and Sections refer to Articles and Sections of this Agreement unless the context
requires otherwise. Whenever the words “include,” “includes” and “including” are used in this
Agreement, they are deemed to be followed by the words “without limitation”. The phrases “herein,”
“hereof,” “hereunder” and words of similar import shall be deemed to refer to this Agreement as a
whole and not to any particular provision of this Agreement. The word “or” shall be inclusive and
not exclusive unless the context requires otherwise. Unless the context requires otherwise, any
agreements, documents, instruments or Laws defined or referred to in this Agreement will be deemed
to mean or refer to such agreements, documents, instruments or Laws as from time to time amended,
modified or supplemented, including (i) in the case of agreements, documents or instruments, by
waiver or consent and (ii) in the case of Laws, by succession of comparable successor statutes.
All references in this Agreement to any particular Law will be deemed to refer also to any rules
and regulations promulgated under that Law. References to a Person will refer to its predecessors
and successors and permitted assigns.
Section 4.9 Amendments. This Agreement may not be amended except by the express
written agreement signed by all of the Parties to this Agreement.
Section 4.10 Waiver. No provision of this Agreement may be waived except by a written
instrument signed by a CMI Stockholder or the Sellers’ Representative (on behalf of itself and the
Sellers), as the case may be, as the Party or Parties against whom the waiver is to be effective.
No course of dealing between the Parties shall be deemed to modify, amend or discharge any
provision or term of this Agreement. No delay by any Party to this Agreement in the exercise of
any of its rights or remedies shall operate as a waiver thereof, and no single or partial exercise
by any Party of any such right or remedy shall preclude any other or further exercise thereof. A
waiver of any right or remedy on any one occasion shall not be construed as a bar to or waiver of
any such right or remedy on any other occasion.
Section 4.11 Entire Agreement. This Agreement (together with the Exchange Agreement
and the other Transaction Documents) constitutes the entire agreement and supersedes all other
prior agreements, understandings, representations and warranties, both written and oral, among the
Parties to this Agreement with respect to the subject matter of this
-9-
Agreement, other than the agreements listed on Schedule A, each of which remains in
full force and effect.
Section 4.12 Rules of Construction. The Parties to this Agreement have been
represented by counsel during the negotiation and execution of this Agreement and waive the
application of any Laws or rule of construction providing that ambiguities in any agreement or
other document will be construed against the Party drafting such agreement or other document.
Section 4.13 Remedies Cumulative. Except as otherwise provided in this Agreement, any
and all remedies expressly conferred upon a Party to this Agreement will be cumulative with, and
not exclusive of, any other remedy contained in this Agreement, at law or in equity. The exercise
by a Party to this Agreement of any one remedy will not preclude the exercise by it of any other
remedy.
Section 4.14 Counterparts; Execution. This Agreement may be executed in any number of
counterparts (including via facsimile or electronic mail in PDF format), all of which are one and
the same agreement. This Agreement may be executed by facsimile signature by any Party and such
signature is deemed binding for all purposes hereof, without delivery of an original signature
being thereafter required.
Section 4.15 Specific Performance. The Parties to this Agreement agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached, and that monetary
damages, even if available, would not be an adequate remedy therefor and therefore fully intend for
specific performance to be the principal remedy for breaches of this Agreement. It is accordingly
agreed that prior to the termination of this Agreement in accordance with Section 4.1, the
Parties to this Agreement will be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this Agreement in any court
referred to in Section 4.16 herein, without proof of actual damages, this being in addition
to any other remedy to which they are entitled at law or in equity. The Parties further agree not
to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or
inequitable for any reason, nor to object to a remedy of specific performance on the basis that a
remedy of monetary damages would provide an adequate remedy for any such breach. Each Party
further acknowledges and agrees that the agreements contained in this Section 4.15 are an
integral part of the Agreement and that, without these agreements, the other Parties would not
enter into this Agreement. Each Party further agrees that no other Party or any other Person shall
be required to obtain, furnish or post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 4.15, and each Party hereto
irrevocably waives any right it may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
Section 4.16 Submission to Jurisdiction. Each of the Parties hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Delaware
Court of Chancery (and if jurisdiction in the Delaware Court of Chancery shall be unavailable, the
Federal courts of the United States of America sitting in the State of Delaware), and any appellate
court from any such court, in any action or proceeding arising out of or relating to this Agreement
or the Transactions or for recognition or enforcement of any judgment relating thereto, and each of
the Parties hereby irrevocably and unconditionally (i)
-10-
agrees not to commence any such action or proceeding except in the Delaware Court of Chancery
(and if jurisdiction in the Delaware Court of Chancery shall be unavailable, the Federal court of
the United States of America sitting in the State of Delaware), (ii) agrees that any claim in
respect of any such action or proceeding may be heard and determined in the Delaware Court of
Chancery (and if jurisdiction in the Delaware Court of Chancery shall be unavailable, the Federal
courts of the United States of America sitting in the State of Delaware), and any appellate court
from any thereof, (iii) waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such action or
proceeding in the Delaware Court of Chancery (and if jurisdiction in the Delaware Court of Chancery
shall be unavailable, the Federal courts of the United States of America sitting in the State of
Delaware), and (iv) waives, to the fullest extent it may legally and effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding in the Delaware Court of
Chancery (and if jurisdiction in the Delaware Court of Chancery shall be unavailable, the Federal
courts of the United States of America sitting in the State of Delaware). Each of the Parties
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
Section 4.17 Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND
HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV)
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 4.17.
Section 4.18 Action in Stockholder Capacity Only. The Parties acknowledge that this
Agreement is entered into by each CMI Stockholder solely in such CMI Stockholder’s capacity as the
Beneficial Owner of such CMI Stockholder’s Owned Shares and nothing in this Agreement restricts or
limits any action taken by any representative of such CMI Stockholder in his capacity as a director
or officer of CMI (including, without limitation, under the Exchange Agreement), or any of its
Affiliates (but not on his own behalf as a stockholder).
Section 4.19 Disclosure. Each CMI Stockholder authorizes CMI to publish and disclose
in any announcement or disclosure required by the SEC or other Governmental Authority such CMI
Stockholder’s identity and ownership of Owned Shares and the nature of such CMI Stockholder’s
obligations under this Agreement.
[SIGNATURE PAGE TO FOLLOW]
-11-
IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be signed effective as of
the date first above written.
| BA CAPITAL COMPANY, L.P. By: RE SBIC Management, LLC, Its general partner By: RE Equity Management, L.P., Its sole member By: RE Equity Management GP, LLC, Its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Operating Officer | |||
| BANC OF AMERICA CAPITAL INVESTORS SBIC, L.P. By: Ridgemont Capital Management SBIC, LLC, Its general partner By: Ridgemont Capital Management, L.P., Its sole member By: REP I GP, LLC, Its general partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx III | |||
| Name: | Xxxxxx X. Xxxxxxxx III | |||
| Title: | Authorized Signatory | |||
[Voting Agreement and Consent Signature Page]
| SELLERS’ REPRESENTATIVE BLACKSTONE FC COMMUNICATIONS PARTNERS L.P. By: BCMA FCC L.L.C., its general partner |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Founding Member | |||
[Voting Agreement and Consent Signature Page]
Schedule A
CMI Stockholders’ Owned Shares as of January 24, 2011
CMI Stockholders’ Owned Shares as of January 24, 2011
| Shares of | ||||||
| Shares of Class | Shares of Class | Class C | ||||
| A Common | B Common | Common | ||||
| Name | Stock | Stock | Stock | |||
BA Capital Company, L.P. (1) 000 X. Xxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxx, XX 00000 |
870,560 | 849,275 | — | |||
Banc of America Capital Investors
SBIC, L.P. 000 X. Xxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxx, XX 00000 |
821,568 | 4,959,916 | — | |||
| (1) | Of the 870,560 shares of Class A Common Stock, 26,976 are held of record by Xxxxxx X. Xxxxxxxx, III. Pursuant to the policies of BA Capital Company, L.P. and its affiliates, Xx. Xxxxxxxx is deemed to hold these restricted shares for the benefit of BA Capital Company, L.P. Does not include options to purchase 11,782 shares of Class A Common Stock, 5,891 of which are exercisable within 60 days of January 24, 2011. Also does not include options to purchase 40,493 shares of Class A Common Stock held of record by Xx. Xxxxxxxx and subject to the aforementioned policies, 20,247 of which are exercisable within 60 days of January 24, 2011. |
BA Capital Company, L.P. and CMI are parties to the Voting Agreement, dated as of June 30,
1998, by and between NationsBanc Capital Corp., CMI and the stockholders named therein. BancAmerica
Capital Investors SBIC I, L.P. and CMI are parties to the Shareholder Agreement, dated as of the
March 28, 2002, by and between BancAmerica Capital Investors SBIC I, L.P. and CMI.
