SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_________
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 6)
CUMULUS MEDIA INC.
(Name of Issuer)
Class A Common Stock, par value $.01 per share
(Title of Class of Securities)
231082108
(CUSIP Number)
J. Travis Hain
Banc of America Capital Investors
Bank of America Corporate Center
100 N. Tryon Street, 25th Floor
Charlotte, North Carolina 28255
(704) 386-7839
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 9, 2006
(Date of Event Which Requires Filing
of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-1(e),
13d-1(f) or 13d-1(g), check the following box: .
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits.
See Rule 13d-7 for other parties to whom copies are sent.
(Continued on following pages)
(Page 1 of 28 Pages)
----------------- -------------
CUSIP No. 13D Page 2 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSON BA Capital Company, L.P.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS WC
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 3,035,246
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
3,035,246
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,035,246
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
=====================================================================
20
----------------- -------------
CUSIP No. 13D Page 3 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSON BA SBIC Management, LLC
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
3,035,246
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,035,246
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,035,246
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
=====================================================================
----------------- -------------
CUSIP No. 13D Page 4 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSON BA Equity Management, L.P.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
3,035,246
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,035,246
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,035,246
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
=====================================================================
----------------- -------------
CUSIP No. 13D Page 5 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSON BA Equity Management GP, LLC
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
3,035,246
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
3,035,246
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,035,246
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
=====================================================================
----------------- -------------
CUSIP No. 13D Page 6 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSON J. Travis Hain
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION United
States
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
12,686,009
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
12,686,009
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
12,686,009
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.4%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
=====================================================================
----------------- -------------
CUSIP No. 13D Page 7 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSONBanc of America Capital Investors SBIC, L.P.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 9,650,763
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
9,650,763
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
9,650,763
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.9%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
=====================================================================
----------------- -------------
CUSIP No. 13D Page 8 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSONBanc of America Capital Management SBIC, LLC
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
9,650,763
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
9,650,763
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
9,650,763
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.9%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
=====================================================================
----------------- -------------
CUSIP No. 13D Page 9 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSONBanc of America Capital Management, L.P.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
9,650,763
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
9,650,763
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
9,650,763
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.9%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
=====================================================================
----------------- -------------
CUSIP No. 13D Page 10 of
231082108 28 Pages
----------------- -------------
=====================================================================
1 NAME OF REPORTING PERSON BACM I GP, LLC
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
---------------------------------------------------------------------
3 SEC USE ONLY
---------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
9,650,763
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
9,650,763
---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
9,650,763
---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.9%
---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
=====================================================================
Item 1. Security and Issuer.
This Amendment No. 6 amends the statement on Schedule 13D filed
with the Securities and Exchange Commission on July 7, 1998, as
amended by Amendment No. 1 filed on December 3, 1999, Amendment No.
2 filed on February 4, 2002, Amendment No. 3 filed on April 3, 2002,
Amendment No. 4 filed on March 27, 2003, and Amendment No. 5 filed
on February 8, 2006 and relates to the Class A Common Stock of
Cumulus Media Inc., 14 Piedmont Center, Suite 1400, Atlanta, Georgia
30305.
The Schedule 13D was originally filed on July 7, 1998 (the
"Original Schedule 13D") by NationsBanc Capital Corporation, a Texas
corporation ("NBCC"), NationsBank, N.A., a national banking
association, NB Holdings Corporation, a Delaware corporation, and
NationsBank Corporation, a North Carolina corporation
("NationsBank"). In the Original Schedule 13D, these reporting
persons reported, among other things, NBCC's direct beneficial
ownership of 3,371,246 shares of the Company's Class B Common Stock
(which are convertible into shares of the Company's Class A Common
Stock on a one-for-one basis).
Amendment No. 1 to the Schedule 13D was filed on December 3,
1999 ("Amendment No. 1") by BA Capital Company, L.P., a Delaware
limited partnership ("BA Capital"), BA SBIC Management, LLC, a
Delaware limited liability company ("BA SBIC Management"), BA Equity
Management, L.P., a Delaware limited partnership ("BA Equity
Management"), BA Equity Management GP, LLC, a Delaware limited
liability company ("BA Equity Management GP"), Walter W. Walker,
Jr., a United States citizen ("Mr. Walker"), and Bank of America
Corporation, a Delaware corporation ("Bank of America"). In
Amendment No. 1, these reporting persons reported, among other
things, that (a) NBCC had previously merged into BA Capital in
connection with the merger of NationsBank with Bank of America,
(b) such reporting persons had become the beneficial owners of the
shares of the Company's Class B Common Stock owned by NBCC, (c) BA
Capital sold 500,000 shares of the Company's Class A Common Stock
(which it acquired upon converting shares of Class B Common Stock)
on November 24, 1999 and (d) after giving effect to such sale, BA
Capital owned 2,871,246 shares of the Company's Class B Common Stock
and held options to purchase 6,000 shares of the Company's Class A
Common Stock.
Amendment No. 2 to the Schedule 13D was filed on February 4,
2002 ("Amendment No. 2") by BA Capital, BA SBIC Management, BA
Equity Management, BA Equity Management GP, Mr. Walker, Banc of
America Capital Investors SBIC, L.P., a Delaware limited partnership
formerly known as BancAmerica Capital Investors SBIC I, L.P.
("BACI"), Banc of America Capital Management SBIC, LLC, a Delaware
limited liability company formerly known as BancAmerica Capital
Management SBIC I, LLC ("Capital Management SBIC"), Banc of America
Capital Management, L.P., a Delaware limited partnership formerly
known as BancAmerica Capital Management I, L.P.("BA Capital
Management"), and BACM I GP, LLC, a Delaware limited liability
company ("BACM"). In Amendment No. 2, these reporting persons
reported, among other things, that (a) the Company, Aurora
Communications, LLC, a Delaware limited liability company ("Aurora")
that was approximately 73% owned by BACI, BACI and certain other
parties had entered into agreements relating to the Company's
proposed acquisition of Aurora (the "Aurora Acquisition"), and (b)
upon the completion of the Aurora Acquisition, the owners of Aurora
would be issued shares of the Company's Class A Common Stock and
Class B Common Stock, would be issued warrants to purchase shares of
the Company's Class A Common Stock and Class B Common Stock and
would be paid cash.
Amendment No. 3 to the Schedule 13D was filed on April 3, 2002
("Amendment No. 3") to report the completion of the Aurora
Acquisition on March 28, 2002 (the "Aurora Closing Date"). In
connection with the closing of the Aurora Acquisition, BACI was
issued 8,944,339 shares of the Company's Class B Common Stock and
warrants to purchase 706,424 shares of the Company's Class A Common
Stock or Class B Common Stock, at BACI's election.
Amendment No. 4 to the Schedule 13D was filed on March 27, 2003
("Amendment No. 4") to report the exercise by BACI of a warrant to
purchase shares of the Company's stock and to voluntarily report the
grant of options to BA Capital's designee on the Company's board of
directors, which options may be deemed to be beneficially owned by
BA Capital. Amendment No. 4 also voluntarily reported that J.
Travis Hain had replaced Walter W. Walker, Jr. as the managing
member of BA Equity Management GP and the managing member of BACM
effective on September 1, 2002.
Amendment No. 5 to the Schedule 13D was filed on February 8,
2006 ("Amendment No. 5") to report the grant of options to BA
Capital's designee on the Company's board of directors, which
options may be deemed to be beneficially owned by BA Capital, and to
reflect the vesting of certain options.
This Amendment No. 6 to the Schedule 13D ("Amendment No. 6") is
being filed to report the entry into a stock purchase agreement with
the Company, pursuant to which the Company agreed to purchase an
aggregate of 4.5 million shares of Class B Common Stock from BA
Capital and BACI, subject to certain conditions, as more fully
described in Item 6 below.
Item 2. Identity and Background.
(a) This statement is being filed jointly by (1) BA Capital,
(2) BA SBIC Management, (3) BA Equity Management, (4) BA Equity
Management GP, (5) Mr. Hain, (6) BACI, (7) Capital Management SBIC,
(8) BA Capital Management and (9) BACM. The persons described in
items (1) through (9) are referred to herein as the "Reporting
Persons." A list of the executive officers and directors of each
Reporting Person that is not an individual is attached as Annex A.
(b) The address of the principal business office of each
Reporting Person is 100 North Tryon Street, Floor 25, Bank of
America Corporate Center, Charlotte, NC 28255.
(c) BA Capital is an investment partnership engaged principally
in the business of making private equity investments. BA SBIC
Management is engaged in the business of being the general partner
of BA Capital. BA Equity Management is engaged in the business of
being the sole member of BA SBIC Management. BA Equity Management
GP is engaged in the business of being the general partner of BA
Equity Management.
BACI is an investment partnership engaged principally in the
business of making private equity investments. Capital Management
SBIC is engaged in the business of being the general partner of
BACI. BA Capital Management is engaged in the business of being the
sole member of Capital Management SBIC. BACM is engaged in the
business of being the general partner of BA Capital Management.
Mr. Hain's principal occupation is serving as the managing
member of BA Equity Management GP, as the managing member of BACM
and as an employee of a subsidiary of Bank of America.
Bank of America is a bank holding company registered under the
Bank Holding Company Act of 1956, as amended, and is engaged in the
general banking and financial services business through its
subsidiaries.
The principal business and principal office address of each of
the Reporting Persons is set forth in paragraph (b) above.
(d) During the last five years, none of the Reporting Persons,
and to the knowledge of each Reporting Person, none of the executive
officers or directors of any such Reporting Person that is not an
individual, has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons,
and to the knowledge of each Reporting Person, none of the executive
officers or directors of any such Reporting Person that is not an
individual, has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which
such person was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, Federal or state securities laws or finding
any violation with respect to such laws.
(f) The following sets forth the jurisdiction of organization
or citizenship of each Reporting Person:
Reporting Person State of Organization/Citizenship
BA Capital Delaware
BA SBIC Management Delaware
BA Equity Management Delaware
BA Equity Management GP Delaware
Mr. Hain United States
BACI Delaware
Capital Management SBIC Delaware
BA Capital Management Delaware
BACM Delaware
To the knowledge of the Reporting Persons, each executive officer
and director of any Reporting Person that is not an individual, as
set forth on Annex A, is a citizen of the United States.
Item 3. Source and amount of Funds or Other Consideration.
As described in the Original Schedule 13D, NBCC purchased
preferred shares of a predecessor to the Company at various times in
1997 and 1998 with cash. These preferred shares were converted into
Class B Common Stock of the Company in connection with the Company's
initial public offering in 1998. Funds for the purchase of these
preferred shares were provided from the working capital of NBCC and
its affiliates.
BACI purchased shares of common and preferred stock in Aurora
Management, Inc., a member of Aurora owning approximately 73% of its
membership interests, at various times between 1999 and 2001 with
cash. On the Aurora Closing Date, these shares of common and
preferred stock were converted into 8,944,339 shares of the
Company's Class B Common Stock and warrants to purchase 706,424
shares of the Company's Class A Common Stock or Class B Common
Stock. Funds for BACI's purchase of shares of common and preferred
stock in Aurora Management, Inc. were provided from the working
capital of BACI and its affiliates. On March 27, 2003, BACI elected
to exercise the warrant it received as part of the Aurora
Acquisition in exchange for shares of the Company's Class B Common
Stock. As a result, BACI currently holds 9,650,763 shares of Class
B Common Stock. Funds for the purchase of the shares issued upon
exercise of the warrant were provided from the working capital of
BACI and its affiliates.
BA Capital holds options exercisable within 60 days to purchase
105,000 shares of Class A Common Stock, and Robert H. Sheridan, III,
a member of the Company's board of directors and a senior vice
president and managing director of the general partner of both BA
Capital and BACI, holds options exercisable within 60 days to
purchase 110,000 shares of Class A Common Stock. BA Capital has the
right to designate one member of the Company's board of directors
and Mr. Sheridan currently serves on the Company's board of
directors as BA Capital's designee. These options were received in
consideration of Mr. Sheridan's board service on behalf of BA
Capital, and no additional consideration was paid by BA Capital to
the Company in exchange for such options. Pursuant to the policies
of BA Capital and its affiliates, Mr. Sheridan is deemed to hold
these options for the benefit of BA Capital.
Item 4. Purpose of Transaction.
NBCC purchased preferred shares of a predecessor to the Company
for investment purposes. As a result of this investment, BA Capital
now holds (i) 840,250 shares of Class A Common Stock, (ii) 1,979,996
shares of Class B Common Stock (which are convertible into shares of
Class A Common Stock on a one-for-one basis) and (iii) options to
purchase 265,000 shares of Class A Common Stock, 215,000 of which
are currently exercisable. BA Capital holds these securities for
investment purposes.
BACI purchased shares of common and preferred stock in Aurora
Management, Inc., a member of Aurora owning approximately 73% of its
membership interests, for investment purposes. In connection with
the closing of the Aurora Acquisition, these shares of common and
preferred stock were converted on the Aurora Closing Date into
8,944,339 shares of the Company's Class B Common Stock and warrants
to purchase 706,424 shares of the Company's Class A Common Stock or
Class B Common Stock. Following the exercise of the warrant, on
March 27, 2003, in exchange for 706,424 shares of Class B Common
Stock, BACI currently holds 9,650,763 shares of Class B Common
Stock. BACI holds these securities for investment purposes.
The Reporting Persons may acquire additional securities of the
Company from time to time in the future, subject to certain factors,
including without limitation (i) applicable securities laws and
governmental restrictions on the number of voting securities the
Reporting Persons may hold, (ii) market conditions and (iii) the
Reporting Persons' assessment of the business and prospects of the
Company.
The Reporting Persons are continuously evaluating the business
and prospects of the Company, and its present and future interests
in, and intentions with respect to, the Company and may at any time
decide to dispose of any or all of the shares of the Company
currently owned by them as well as securities they may acquire in
the future.
On May 9, 2006, BA Capital and BACI entered into a stock
purchase agreement with the Company pursuant to which the Company
agreed to purchase an aggregate of 4.5 million shares Class B Common
Stock from BA Capital and BACI subject to certain conditions, as
more fully described in Item 6 below.
Other than discussed as herein, the Reporting Persons currently
have no plans to effect:
(a) the acquisition of additional securities of the Company, or
the disposition of securities of the Company;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
(c) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries;
(d) any change in the present board of directors or management
of the Company, including any plans or proposals to change the
number or term of directors or the to fill any existing vacancies on
the Board of Directors;
(e) any material change in the present capitalization or
dividend policy of the Company;
(f) any other material change in the Company's business or
corporate structure;
(g) changes in the Company's articles of incorporation, by-laws
or instruments corresponding thereto or other actions which may
impede the acquisition of control of the Company by any person;
(h) causing a class of securities of the Company to be delisted
from a national securities exchange or to cease to be authorized to
be quoted in an inter-dealer quotation system of a registered
national securities association;
(i) a class of equity securities of the Company becoming
eligible for termination of registration pursuant to Section
12(g)(4) of the Securities Exchange Act of 1934; or
(j) any action similar to any of those enumerated above.
The Reporting Persons intend to evaluate their investment in
the Company continuously and may, based on any such evaluation,
determine at a future date to change their current position with
respect to any action enumerated above.
Item 5. Interest in Securities of the Issuer.
(a)(i) This Amendment No. 6 relates to 12,686,009 shares of
the Company's Class A Common Stock, representing 21.4% of the
Company's outstanding shares of Class A Common Stock and 19.3% of
the voting power (which percentages are calculated in accordance
with Rule 13d-3(d)(1)). BA Capital currently holds 840,250 shares
of Class A Common Stock, 1,979,996 shares of Class B Common Stock
and options to purchase 265,000 shares of Class A Common Stock,
215,000 of which are currently exercisable. BA Capital beneficially
owns 3,035,246 shares, or 6.1%, of Class A Common Stock (determined
in accordance with Rule 13d-3(d)(1)). BACI currently holds
9,650,763 shares of Class B Common Stock. BACI beneficially owns
9,650,763 shares, or 16.9%, of Class A Common Stock (determined in
accordance with Rule 13d-3(d)(1)). No other Reporting Person
directly holds any Common Stock of the Company or any rights to
acquire any such common stock.
Except as may otherwise be required by Delaware corporate law,
shares of Class A Common Stock, Class B Common Stock and Class C
Common stock vote together as a single class when such shares are
entitled to vote. Shares of Class B Common Stock are convertible
into shares of Class A Common Stock or Class C Common Stock on a
one-for-one basis. Shares of Class C Common Stock are convertible
into shares of Class A Common Stock on a one-for-one basis. Shares
of Class A Common Stock are entitled to one vote per share, shares
of Class C Common Stock are entitled to ten votes per share and
shares of Class B Common Stock have no voting rights except in
specified instances required by Delaware corporate law or by the
Company's articles of incorporation. Upon conversion of any share
of Class B Common Stock into a share of Class C Common Stock by
certain shareholders of the Company (including BA Capital), shares
of Class C Common Stock become entitled to one vote per share,
rather than ten votes per share.
The 840,250 shares of Class A Common Stock currently held by BA
Capital represent 1.8% of the Company's outstanding shares of Class
A Common Stock. If BA Capital were to (A) convert its 1,979,996
shares of Class B Common Stock into an equivalent number of shares
of Class A Common Stock and (B) exercise its currently exercisable
options to purchase 215,000 shares of Class A Common Stock and if
BACI were to convert its 9,650,763 shares of Class B Common Stock
into an equivalent number of shares of Class A Common Stock, BA
Capital and BACI would together own 12,686,009 shares of Class A
Common Stock, representing 21.4% of the Company's then outstanding
shares of Class A Common Stock and 19.3% of the voting power.
The 12,686,009 shares of Class A Common Stock beneficially
owned by BA Capital and BACI represent 21.2% of the Company's
outstanding shares of Class A Common Stock, Class B Common Stock and
Class C Common Stock considered in the aggregate and 19.3% of the
voting power (or, if the Class C Common Stock is entitled to one
vote per share, 21.2% of the voting power).
(ii)All information herein relating to the currently
outstanding number of shares of the Company's Class A Common Stock,
Class B Common Stock and Class C Common Stock is derived from the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2006. Accordingly, the Reporting Persons have assumed for
purposes of this Amendment No. 6 that there are 47,302,508 shares of
Class A Common Stock outstanding, 11,630,759 shares of Class B
Common Stock outstanding and 644,871 shares of Class C Common Stock
outstanding, or a total of 59,578,138 shares of all classes of
Common Stock outstanding.
(b) BA Capital has sole voting and dispositive power with
respect to 3,035,246 shares of Class A Common Stock, which consists
of 840,250 shares of Class A Common Stock, 1,979,996 shares of Class
B Common Stock and currently exercisable options to purchase 215,000
shares of Class A Common Stock. BACI has sole voting and
dispositive power with respect to 9,650,763 shares of Class A Common
Stock, which consists of 9,650,763 shares of the Company's Class B
Common Stock.
BA SBIC Management is the general partner of BA Capital. As a
result of the limited partnership agreement of BA Capital, BA SBIC
Management is deemed to have shared voting and dispositive power
with respect to the securities of the Company owned by BA Capital.
BA Equity Management is the sole member of BA SBIC Management.
As a result of the operating agreement for BA SBIC Management, BA
Equity Management is deemed to have shared voting and dispositive
power with respect to the securities of the Company owned by BA
Capital.
BA Equity Management GP is the general partner of BA Equity
Management. As a result of the limited partnership agreement for BA
Equity Management, BA Equity Management GP is deemed to have shared
voting and dispositive power with respect to the securities of the
Company owned by BA Capital.
Capital Management SBIC is the general partner of BACI. As a
result of the limited partnership agreement of BACI, Capital
Management SBIC is deemed to have shared voting and dispositive
power with respect to the securities of the Company owned by BACI.
BA Capital Management is the sole member of Capital Management
SBIC. As a result of the operating agreement for Capital Management
SBIC, BA Capital Management is deemed to have shared voting and
dispositive power with respect to the securities of the Company
owned by BACI.
BACM is the general partner of BA Capital Management. As a
result of the limited partnership agreement for BA Capital
Management, BACM is deemed to have shared voting and dispositive
power with respect to the securities of the Company owned by BACI.
Mr. Hain is the managing member of both BA Equity Management GP
and BACM and as a result is deemed to have shared voting and
dispositive power with respect to the securities of the Company
owned by BA Capital and BACI. Mr. Hain disclaims such beneficial
ownership.
If Mr. Hain's employment with Bank of America or its
subsidiaries is terminated, Mr. Hain will cease to be the managing
member of BA Equity Management GP and BACM. As the holder of a
majority in interest in BA Equity Management GP and BACM, Bank of
America has the right to approve any replacement managing member of
BA Equity Management GP or BACM. Bank of America does not have any
rights with respect to voting or disposition of the securities of
the Company owned by BA Capital or BACI.
(c) None of the Reporting Persons and, to the knowledge of the
Reporting Persons, no executive officer of director of any Reporting
Person has had any transactions in the Class A Common Stock during
the past 60 days.
(d) Except as set forth herein, no person has the right to
receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, any shares of the Company's Class A
Common Stock.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
The following is a summary of certain material terms and
conditions of agreements with respect to the securities of the
Company to which BA Capital or BACI are parties. This summary is
qualified in its entirety by reference to the copies of these
agreements, which are exhibits to this Schedule 13D and incorporated
herein by reference.
Purchase Agreement
BA Capital and BACI have entered into a Stock Purchase
Agreement dated May 9, 2006 with the Company (the "Purchase
Agreement") pursuant to which the Company agreed to purchase
1,017,649 and 3,482,351 shares of Class B Common Stock from BA
Capital and BACI, respectively. Under the Purchase Agreement, BA
Capital and BACI also have the option to sell to the Company up to
an aggregate additional 500,000 shares of Class B Common Stock so
long as the aggregate purchase price paid by the Company pursuant to
the Purchase Agreement plus the aggregate amount paid by the Company
to purchase shares of Class A Common Stock pursuant to the Company's
self-tender offer publicly announced on May 10, 2005 (the "Tender
Offer") does not exceed $200.0 million. The per share purchase
price payable under the Purchase Agreement for the Class B Common
Stock purchased thereunder will be equal to the purchase price paid
for the shares in the Tender Offer. Closing under the Purchase
Agreement is subject to the completion of the Tender Offer and will
occur on the eleventh business day following the expiration time of
the Tender Offer. In addition to BA Capital agreeing not to tender
any of its shares of Class A Common Stock in the Tender Offer, both
BA Capital and BACI have agreed not to convert any of their shares
of Class B Common Stock into shares of Class A Common Stock in order
to tender such converted shares in the Tender Offer. Both BA
Capital and BACI are prohibited under the Purchase Agreement from
selling shares, converting shares of Class B Common Stock into
shares of Class A Common Stock or purchasing shares during the
Tender Offer and until eleven business days following completion of
the Tender Offer.
Other Agreements and Arrangements
One or more of the Reporting Persons are also parties to (i) a
Voting Agreement dated June 30, 1998, (ii) a Registration Rights
Agreement dated June 30, 1998, (iii) an Amended and Restated
Registration Rights Agreement dated January 23, 2002, and (iv) a
Shareholders Agreement dated March 28, 2002 and are subject to the
Company's amended and restated certificate of incorporation, all of
which are described in the Original Schedule 13D or one or more of
the amendments thereto.
Item 7. Material to be Filed as Exhibits.
Exhibit Name
99.1 Joint Filing Agreement dated May Filed
18, 2006, by and among BA Capital, herewith
BA SBIC Management, BA Equity
Management, BA Equity Management
GP, Mr. Hain, BACI, Capital
Management SBIC, BA Capital
Management and BACM.
99.2 Stock Purchase Agreement dated May Filed
9, 2006, by and among BA Capital, herewith
BACI and the Company.
99.3 Amended and Restated Registration
Rights Agreement dated as of Incorporated
January 23, 2002, by and among the by
Company, Aurora and the parties reference
listed therein. to Exhibit
99.3 to
Amendment
No. 2 to
Schedule
13D filed
February
4, 2002
99.4 Shareholders Agreement dated as of
March 28, 2002, by and between the Incorporated
Company and BACI by
reference
to Exhibit
99.5 to
Amendment
No. 3
filed
April 3,
2002
99.5 Voting Agreement dated June 30,
1998, by and among NBCC, the Incorporated
Company, Quaestus Management by
Corporation, DBBC of Georgia, LLC, reference
CML Holdings, LLC, Richard Weening to Exhibit
and Lewis W. Dickey, Jr. A to
Schedule
13D filed
July 7,
1998
99.6 Registration Rights Agreement dated
June 30, 1998, by and among the Incorporated
Company, NBCC, Heller Equity by
Capital Corporation, The State of reference
Wisconsin Investment Board and The to Exhibit
Northwestern Mutual Life Insurance B to
Company Schedule
13D filed
July 7,
1998
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement
is true, complete and correct.
BA CAPITAL COMPANY, L.P.
By: BA SBIC Management, LLC, its general partner
By: BA Equity Management, L.P., its sole
member
By: BA Equity Management GP, LLC, its
general partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BA SBIC MANAGEMENT, LLC
By: BA Equity Management, L.P., its sole member
By: BA Equity Management GP, LLC, its general
partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BA EQUITY MANAGEMENT, L.P.
By: BA Equity Management GP, LLC, its general
partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BA EQUITY MANAGEMENT GP, LLC
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
/s/ J. Travis Hain
J. Travis Hain
BANC OF AMERICA CAPITAL INVESTORS SBIC, L.P.
By: Banc of America Capital Management SBIC, LLC,
its general partner
By: Banc of America Capital Management, L.P.,
its sole member
By: BACM I GP, LLC, its general partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BANC OF AMERICA CAPITAL MANAGEMENT SBIC, LLC
By: Banc of America Capital Management, L.P., its
sole member
By: BACM I GP, LLC, its general partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BANC OF AMERICA CAPITAL MANAGEMENT, L.P.
By: BACM I GP, LLC, its general partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BACM I GP, LLC
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
A-8
A-1
Annex A
BA CAPITAL COMPANY, L.P.
Executive Officers
Not Applicable.
Address
Each of such executive officers can be reached c/o: Banc of America
Capital Investors, 100 North Tryon Street, Floor 25, Bank of America
Corporate Center, Charlotte, NC 28255.
BA SBIC MANAGEMENT, LLC
Executive Officers
J. Travis Hain Senior Vice President and Managing
Director
Ann Hayes Browning Senior Vice President and Managing
Director
George E. Morgan, III Senior Vice President and Managing
Director
Walker L. Poole Senior Vice President and Managing Director
Robert H. Sheridan, III Senior Vice President and Managing
Director
Address
Each of such executive officers can be reached c/o: Banc of America
Capital Investors, 100 North Tryon Street, Floor 25, Bank of America
Corporate Center, Charlotte, NC 28255.
BA EQUITY MANAGEMENT, L.P.
Executive Officers
J. Travis Hain Senior Vice President and Managing
Director
Ann Hayes Browning Senior Vice President and Managing
Director
George E. Morgan, III Senior Vice President and Managing
Director
Walker L. Poole Senior Vice President and Managing Director
Robert H. Sheridan, III Senior Vice President and Managing
Director
Address
Each of such executive officers can be reached c/o: Banc of America
Capital Investors, 100 North Tryon Street, Floor 25, Bank of America
Corporate Center, Charlotte, NC 28255.
BA EQUITY MANAGEMENT GP, LLC
Executive Officers
J. Travis Hain Senior Vice President and Managing
Director
Ann Hayes Browning Senior Vice President and Managing
Director
George E. Morgan, III Senior Vice President and Managing
Director
Walker L. Poole Senior Vice President and Managing Director
Robert H. Sheridan, III Senior Vice President and Managing
Director
Address
Each of such executive officers can be reached c/o: Banc of America
Capital Investors, 100 North Tryon Street, Floor 25, Bank of America
Corporate Center, Charlotte, NC 28255.
BANC OF AMERICA CAPITAL INVESTORS SBIC, L.P.
Executive Officers
Not Applicable.
Address
Each of such executive officers can be reached c/o: Banc of America
Capital Investors, 100 North Tryon Street, Floor 25, Bank of America
Corporate Center, Charlotte, NC 28255.
BANC OF AMERICA CAPITAL MANAGEMENT SBIC, LLC
Executive Officers
J. Travis Hain Senior Vice President and Managing
Director
Ann Hayes Browning Senior Vice President and Managing
Director
George E. Morgan, III Senior Vice President and Managing
Director
Walker L. Poole Senior Vice President and Managing Director
Robert H. Sheridan, III Senior Vice President and Managing
Director
Address
Each of such executive officers can be reached c/o: Banc of America
Capital Investors, 100 North Tryon Street, Floor 25, Bank of America
Corporate Center, Charlotte, NC 28255.
BANC OF AMERICA CAPITAL MANAGEMENT, L.P.
Executive Officers
J. Travis Hain Senior Vice President and Managing
Director
Ann Hayes Browning Senior Vice President and Managing
Director
George E. Morgan, III Senior Vice President and Managing
Director
Walker L. Poole Senior Vice President and Managing Director
Robert H. Sheridan, III Senior Vice President and Managing
Director
Address
Each of such executive officers can be reached c/o: Banc of America
Capital Investors, 100 North Tryon Street, Floor 25, Bank of America
Corporate Center, Charlotte, NC 28255.
BACM I, GP, LLC
Executive Officers
J. Travis Hain Senior Vice President and Managing
Director
Ann Hayes Browning Senior Vice President and Managing
Director
George E. Morgan, III Senior Vice President and Managing
Director
Walker L. Poole Senior Vice President and Managing Director
Robert H. Sheridan, III Senior Vice President and Managing
Director
Address
Each of such executive officers can be reached c/o: Banc of America
Capital Investors, 100 North Tryon Street, Floor 25, Bank of America
Corporate Center, Charlotte, NC 28255.
10
Exhibit 99.1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1) promulgated under the
Securities and Exchange Act of 1934, as amended, the undersigned
hereby agree to the joint filing with each other on behalf of each
of them of Amendment No. 6 to such a statement on Schedule 13D with
respect to the Class A Common Stock, par value $.01 per share, of
Cumulus Media Inc. beneficially owned by each of them. This Joint
Filing Agreement shall be included as an exhibit to Amendment No. 6
to such Schedule 13D.
IN WITNESS WHEREOF, the undersigned have executed this Joint
Filing Agreement as of the 18 day of May, 2006.
BA CAPITAL COMPANY, L.P.
By: BA SBIC Management, LLC, its general partner
By: BA Equity Management, L.P., its sole
member
By: BA Equity Management GP, LLC, its
general partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BA SBIC MANAGEMENT, LLC
By: BA Equity Management, L.P., its sole member
By: BA Equity Management GP, LLC, its general
partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BA EQUITY MANAGEMENT, L.P.
By: BA Equity Management GP, LLC, its general
partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BA EQUITY MANAGEMENT GP, LLC
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
/s/ J. Travis Hain
J. Travis Hain
BANC OF AMERICA CAPITAL INVESTORS SBIC, L.P.
By: Banc of America Capital Management SBIC, LLC,
its general partner
By: Banc of America Capital Management, L.P.,
its sole member
By: BACM I GP, LLC, its general partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BANC OF AMERICA CAPITAL MANAGEMENT SBIC, LLC
By: Banc of America Capital Management, L.P., its
sole member
By: BACM I GP, LLC, its general partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BANC OF AMERICA CAPITAL MANAGEMENT, L.P.
By: BACM I GP, LLC, its general partner
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
BACM I GP, LLC
By: /s/ J. Travis Hain
Name: J. Travis Hain
Title: Managing Member
- 19 -
Exhibit 99.2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of May 9,
2006 by and among Cumulus Media Inc., a corporation organized and
existing under the laws of the State of Delaware (the "Company"),
and Banc of America Capital Investors SBIC, L.P., a Delaware limited
partnership ("BACI") and BA Capital Company, L.P., a Delaware
limited partnership ("BACC" and, together with BACI, the "Sellers").
R E C I T A L S
A. WHEREAS, the Company intends, but has not made any public
announcement of such intention, to conduct a public modified Dutch
auction self-tender offer for up to 11.5 million shares of its Class
A common stock, $.01 par value per share (the "Class A Common
Stock"), at a price not less than $11.00 but not more than $12.50
per share, pursuant to the terms and conditions of an Offer to
Purchase and related Letter of Transmittal, drafts of which have
been provided to Sellers (together, the "Offer to Purchase"), as
they may be revised, amended, modified or supplemented from time to
time after the date hereof in accordance with Section 8.3 hereof
(the "Tender Offer"), which is expected to commence during the week
of May 15, 2006;
B. WHEREAS, as of the date hereof, BACC owns of record 840,250
shares of Class A Common Stock and holds options to purchase 105,000
shares of Class A Common Stock, and BACC and BACI own 1,979,996 and
9,650,763 shares, respectively, of the Company's Class B common
stock, $.01 par value per share ("Class B Common Stock"), which
constitutes 100.0% of the issued and outstanding shares of Class B
Common Stock;
C. WHEREAS, subject to certain limitations set out in the amended
and restated certificate of incorporation of the Company (the
"Certificate") and, with respect to BACI, as set out in that certain
Shareholder Agreement between the Company and BACI dated March 28,
2002 (the "Shareholder Agreement"), Sellers have the right to
convert their Class B Common Stock into an equal number of shares of
either Class A Common Stock or Class C common stock, $.01 par value
per share, of the Company (the "Class C Common Stock");
D. WHEREAS, Sellers have determined they will not convert any of
their shares of Class B Common Stock into shares of Class A Common
Stock for purposes of tendering any such shares in the Tender Offer,
and BACC has determined not to exercise its right to tender any
shares of Class A Common Stock pursuant to the Tender Offer, and
instead have agreed to sell certain shares of Class B Common Stock
to the Company outside of the Tender Offer pursuant to this
Agreement; and
E. WHEREAS, the Company and Sellers desire to make certain
covenants and agreements regarding the purchase by the Company of
certain shares of Class B Common Stock pursuant to this Agreement.
NOW, THEREFORE, in consideration of the covenants and premises set
forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
AGREEMENT
1. Purchase and Sale of the Shares; the Closing.
1.1 Purchase and Sale of Class B Common Stock.
(a) Subject to the completion of the Tender Offer as set forth
below and the other terms and conditions of this Agreement, and on
the basis of the representations, warranties and covenants set forth
herein, each Seller agrees to sell to the Company, and the Company
agrees to purchase from each Seller, the number of shares of Class B
Common Stock set forth below opposite the Seller's respective name,
subject to adjustment as set forth in subsection (b) hereof:
BACC 1,017,649 Shares
BACI 3,482,351 Shares
(b) In addition, at the option of the Sellers, the Sellers may
elect to sell to the Company, and the Company shall purchase from
the Sellers, up to an additional 500,000 Shares (as defined herein);
provided that such additional number of Shares purchased by the
Company will be reduced, to the extent necessary, so that the total
purchase price paid by the Company for shares of Class A Common
Stock in the Tender Offer and for Shares pursuant to this Agreement
in the aggregate does not exceed $200.0 million. Sellers may
exercise this option by providing written notice to the Company not
later than nine (9) business days prior to the Closing. Any such
additional Shares purchased pursuant to this Section 1.1(b) shall be
purchased from each of the Sellers in the same proportion as the
Shares purchased pursuant to Section 1.1(a), unless otherwise agreed
between Sellers and the Company.
(c) The number of shares of Class B Common Stock to be purchased
from Sellers by the Company pursuant to this Section 1.1 is herein
referred to as the "Shares".
1.2 Purchase Price. The "Per Share Purchase Price" for the Shares
shall be equal to the price per share actually paid by the Company
for the shares of Class A Common Stock that are tendered by holders
of Class A Common Stock and accepted for payment and paid for by the
Company pursuant to the Tender Offer. The "Purchase Price" shall
equal the Per Share Purchase Price specified in this Section 1.2
multiplied by the aggregate number of Shares purchased by the
Company from Sellers pursuant to Section 1.1 of this Agreement.
1.3 The Closing. Subject to the terms and conditions hereof, the
purchase and sale of the Shares contemplated by this Agreement (the
"Closing") will take place at the offices of Jones Day, 1420
Peachtree Street, N.E., Suite 800, Atlanta, Georgia 30309 at 10:00
a.m., Atlanta, Georgia time, on the eleventh business day following
the date of termination of the Tender Offer (the "Successful
Completion"), or at such other later date or place as the parties
shall mutually agree. At the Closing, (i) Sellers will deliver to
the Company certificates representing the Shares to be purchased by
the Company duly endorsed or accompanied by stock powers duly
executed in blank and otherwise in form acceptable for transfer on
the books of the Company, and (ii) the Company shall deliver the
Purchase Price to Sellers by wire transfer of immediately available
funds to one or more accounts specified by Sellers at least one
business day prior to the Closing.
2. Representations and Warranties of Sellers. In order to induce
the Company to enter into this Agreement, Sellers hereby represent
and warrant to the Company as follows:
2.1 Ownership of Shares. Sellers own of record the number of
issued and outstanding shares of Class A Common Stock and Class B
Common Stock set forth in the recitals to this Agreement. The Shares
to be sold to the Company by Sellers when delivered to the Company
shall be free and clear of any liens, claims or encumbrances,
including rights of first refusal and similar claims, other than
restrictions of applicable state and federal securities laws and
pursuant to the terms of the Certificate and the Shareholder
Agreement. There are no restrictions on the transfer of such Shares
as contemplated hereby imposed by any shareholder or similar
agreement or any law, regulation or order, other than applicable
state and federal securities laws.
2.2 Authorization. Sellers have full right, power and authority to
execute, deliver and perform this Agreement and to sell, assign and
deliver the Shares to be sold by them to the Company. This Agreement
is the legal, valid and binding obligation of Sellers, enforceable
in accordance with its terms, except to the extent that the
enforceability thereof may be limited by (i) principles of public
policy, (ii) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the
enforcement of creditors' rights generally, and (iii) rules of law
governing the availability of equitable remedies.
2.3 No Violation; No Consent. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby by Sellers (a) will not violate any
law or regulation applicable to Sellers or constitute a breach or
violation of or default under any judgment, decree or order or any
material agreement or instrument of Sellers or to which any Seller
is subject, (b) will not result in the creation or imposition of any
lien upon the Shares to be sold by Sellers, and (c) will not require
the consent of or prior notice to any governmental entity or any
party to any material contract, agreement or arrangement with
Sellers.
2.4 Brokerage. There are no claims for brokerage commissions or
finder's fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement
or agreement made by or on behalf of Sellers.
3. Representations and Warranties of the Company. In order to
induce Sellers to enter into this Agreement, the Company hereby
represents and warrants as follows:
3.1 Organization and Corporate Power; Authorization. The Company
is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. The Company has
the requisite power and authority to execute, deliver and perform
this Agreement and to acquire the Shares. As of the Closing the
purchase of the Shares hereunder and pursuant to the Tender Offer
shall have been approved in accordance with and be permitted by all
applicable provisions of the Delaware General Corporation Law
(including without limitation Sections 154 and 160 thereof). The
execution, delivery and performance of this Agreement and the
consummation by the Company of the transactions contemplated hereby
have been approved by a majority of the disinterested directors on
the Board of Directors of the Company, and have been otherwise duly
authorized by all requisite action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and is
the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the
extent that the enforceability thereof may be limited by (i)
principles of public policy, (ii) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or
affecting the enforcement of creditors' rights generally, and (iii)
rules of law governing the availability of equitable remedies.
3.2 Capital Stock. The authorized capital stock of the Company
consists of 170,262,000 shares, divided into four classes consisting
of: (i) 100,000,000 shares of Class A Common Stock, of which
47,697,508 shares are issued and outstanding; (ii) 20,000,000 shares
of Class B Common Stock, of which 11,630,759 shares are issued and
outstanding; (iii) 30,000,000 shares of Class C Common Stock, of
which 644,871 shares are issued and outstanding; and (iv) 20,262,000
shares of Preferred Stock, $.01 par value per share, of which
250,000 shares are designated as 13 3/4% Series A Cumulative
Exchangeable Redeemable Preferred Stock due 2009 and of which 12,000
shares are designated as 12% Series B Cumulative Preferred Stock,
none of which shares of Preferred Stock are issued and outstanding.
3.3 No Violation; No Consent. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby by the Company (a) will not violate
any law or regulation applicable to the Company or constitute a
breach or violation of or default under any judgment, decree or
order or any material agreement or instrument of the Company or to
which the Company is subject, and (b) will not require the consent
of or prior notice to any governmental entity or any party to any
contract, agreement or arrangement with the Company, except for, in
either case, that certain Credit Agreement dated as of July 14, 2005
among the Company, the lenders party thereto and named therein, and
JPMorgan Chase Bank, N.A., as Administrative Agent (the "Credit
Agreement").
3.4 Brokerage. There are no claims for brokerage commissions or
finder's fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement
or agreement made by or on behalf of the Company.
4. Conditions to the Company's Obligations. The obligations of
the Company under Article 1 to purchase the Shares at the Closing
from Sellers are subject to the fulfillment as of the Closing of
each of the following conditions unless waived by the Company:
4.1 Representations and Warranties. The representations and
warranties of Sellers contained in Article 2 shall be true and
correct on and as of the date of the Closing with the same effect as
though such representations and warranties had been made on and as
of the date of the Closing.
4.2 Consents. The Company shall have obtained all consents or
waivers required under the Credit Agreement as are necessary to
consummate the transactions contemplated hereby.
4.3 Performance. Sellers shall have performed and complied in all
material respects with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or
complied with by it on or before the date of the Closing.
4.4 Tender Offer. The Company shall have accepted for payment, and
paid for, shares of Class A Common Stock tendered pursuant to the
Tender Offer, in accordance with the terms and conditions of the
Offer to Purchase.
4.5 Delivery of Certificates. Sellers shall have delivered all of
the stock certificates representing the Shares to be sold by it at
the Closing, free and clear of any liens, claims or encumbrances,
along with all stock powers, assignments or any other documents,
instruments or certificates necessary for a valid transfer.
4.6 No Violation of Law. No governmental authority shall have
advised or notified the Company that the consummation of the
transactions contemplated hereunder would constitute a material
violation of any applicable laws or regulations, which notification
or advice shall not have been withdrawn or terminated after the
exhaustion of the Company's good faith efforts to cause such
withdrawal or termination.
5. Conditions to Sellers' Obligations. The obligations of Sellers
under Article 1 to sell the Shares at the Closing are subject to the
fulfillment as of the Closing of each of the following conditions
unless waived by Sellers:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Article 3 shall be true and
correct as of the date of the Closing with the same effect as though
such representations and warranties had been made on and as of the
date of the Closing, except for the representations and warranties
as to the number of shares of capital stock of the Company issued
and outstanding, which shall be true and correct only as of the date
hereof..
5.2 Performance. The Company shall have performed and complied in
all material respects with all agreements, obligations and
conditions contained in this Agreement that are required to be
performed or complied with by it on or before the date of the
Closing.
5.3 Payment of Purchase Price. The Company shall have delivered
the Purchase Price to be paid by the Company to Sellers by wire
transfer to the account(s) specified by Sellers.
5.4 Minimum Amount of Common Stock Tendered. The Company shall have
accepted for payment, and paid for, not less than 2.875 million
shares of Class A Common Stock pursuant to the Tender Offer, in
accordance with the terms and conditions of the Offer to Purchase.
5.5 No Violation of Law. No governmental authority shall have
advised or notified Sellers that the consummation of the
transactions contemplated hereunder would constitute a material
violation of any applicable laws or regulations, which notification
or advice shall not have been withdrawn or terminated after the
exhaustion of the Sellers' good faith efforts to cause such
withdrawal or termination.
6. Covenants.
6.1 No Purchase of Class A Common Stock. Until eleven business
days following the Successful Completion of the Tender Offer, each
Seller agrees that it will not, directly or indirectly, purchase any
shares of Class A Common Stock.
6.2 No Sale of Class A Common Stock. Except as contemplated
hereunder, from the date hereof until the Closing or the termination
of this Agreement, each Seller agrees that it will not, directly or
indirectly, sell any shares of Class A Common Stock, including in
the Tender Offer.
6.3 No Conversion of Class B Common Stock. From the date hereof
until the Closing or the termination of this Agreement, each Seller
will not convert, or take any steps to convert, any of its shares of
Class B Common Stock into shares of Class A Common Stock, whether
for purposes of tendering such shares in the Tender Offer or
otherwise.
6.4 Closing Conditions. Sellers and the Company shall use their
commercially reasonable efforts to ensure that each of the
conditions to Closing is satisfied.
7. Survival of Representations and Warranties. All
representations and warranties hereunder shall survive the Closing.
8. Miscellaneous.
8.1 Adjustments. Wherever a particular number is specified herein,
including, without limitation, the number of shares or price per
share, such number shall be adjusted to reflect any stock dividends,
stock-splits, reverse stock-splits, combinations or other
reclassifications of stock or any similar transactions, and
appropriate adjustments shall be made with respect to the relevant
provisions of this Agreement so as to fairly and equitably preserve,
as far as practicable, the original rights and obligations of the
Company and Sellers under this Agreement.
8.2 Governing Law; Jurisdiction. This Agreement shall be governed
by and construed and enforced in accordance with the internal laws
of the State of New York without giving effect to the principles of
conflicts of laws. Any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of
this Agreement may be brought or otherwise commenced in any state or
federal court located in the State of New York. Each party hereto
agrees to the entry of an order to enforce any resolution,
settlement, order or award made pursuant to this Section 8.2 by the
state and federal courts located in the State of New York and in
connection therewith hereby waives, and agrees not to assert by way
of motion, as a defense, or otherwise, any claim that such
resolution, settlement, order or award is inconsistent with or
violative of the laws or public policy of the laws of the State of
New York or any other jurisdiction.
8.3 Amendments to Terms of Tender Offer. Sellers' consent, which
shall not be unreasonably withheld, shall be required for any
amendment to the terms of the Tender Offer that (i) increases the
aggregate number of shares sought in the Tender Offer, (ii) changes
the type or minimum or maximum amount of consideration per share
offered to security holders, (iii) materially alters any of the
conditions of the Tender Offer or changes the minimum number of
shares required to be tendered into the Tender Offer or (iv) extends
the expiration date of the Tender Offer beyond August 15, 2006.
8.4 Approvals and Waivers. Each of the Company and Sellers hereby
grants any and all approval and waivers required from it under the
Certificate and the Shareholder Agreement or otherwise in connection
with the purchase and sale of the Shares hereunder and acknowledges
and agrees that all approvals and waivers required under the
Certificate and the Shareholder Agreement in connection with the
purchase and sale of the Shares have been obtained.
8.5 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors and assigns of the parties hereto.
8.6 Entire Agreement; Amendment. This Agreement constitutes the
full and entire understanding and agreement between the parties with
regard to the subjects hereof and thereof. Neither this Agreement
nor any provision hereof may be amended, changed or waived other
than by a written instrument signed by the party against who
enforcement of any such amendment, change or waiver is sought.
8.7 Cooperation. The Company and Sellers shall, from and after the
date hereof, cooperate in a reasonable manner to effect the purposes
of this Agreement.
8.8 Termination. The Company or Sellers may terminate this
Agreement if (i) the Tender Offer is terminated without the purchase
of any shares of Class A Common Stock or (ii) the Tender Offer is
not consummated by August 15, 2006; provided that the Company may
not terminate this Agreement under this clause (ii) unless the
Tender Offer is terminated. Upon termination of this Agreement
pursuant to this Section 8.8, none of the parties hereto shall have
any liability hereunder except for breaches of such party's
representations, warranties or covenants occurring prior to the date
of such termination.
8.9 Notices, etc. All notices and other communications required or
permitted hereunder shall be effective upon receipt and shall be in
writing and may be delivered in person, by telecopy, electronic
mail, express delivery service or U.S. mail, in which event it may
be mailed by first-class, certified or registered, postage prepaid,
addressed, to the party to be notified, at the respective addresses
set forth below, or at such other address which may hereinafter be
designated in writing:
(a) If to Sellers, to:
Banc of America Capital Investors
NC1-007-25-02, 25th Floor
Bank of America Corporate Center
100 North Tryon Street
Charlotte, NC 28255-0001
Attention: Robert H. Sheridan III
Phone: (704) 386-5109
Fax: (704) 386-6432
with a copy to:
Kennedy Covington Lobdell and Hickman, L.L.P.
214 North Tryon Street, 47th Floor
Charlotte, NC 28202
Attention: Sean M. Jones, Esq.
Phone: (704) 331-7406
Fax: (704) 353-3106
If to the Company, to:
Cumulus Media Inc.
3535 Peachtree Road
Building 14, 14th Floor
Atlanta, Georgia 30305
Attention: Lewis W. Dickey, Jr.
Phone: 404-949-0700
Fax: 404-443-0743
with a copy to:
Jones Day
1420 Peachtree Street, N.E.
Suite 800
Atlanta, Georgia 30309-3053
Attention: Mark L. Hanson, Esq.
Fax:. 404-581-8330
8.10 Severability. If any provision of this Agreement shall be
judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
8.11 Titles and Subtitles. The titles of the Articles and Sections
of this Agreement are for convenience of reference only and in no
way define, limit, extend, or describe the scope of this Agreement
or the intent of any of its provisions.
8.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
8.13 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party upon any
breach or default of any other party under this Agreement shall
impair any such right, power or remedy, nor shall it be construed to
be a waiver of any such breach or default, or any acquiescence
therein, or of any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter
occurring. It is further agreed that any waiver, permit, consent or
approval of any kind or character of any breach or default under
this Agreement, or any waiver of any provisions or conditions of
this Agreement must be in writing and shall be effective only to the
extent specifically set forth in writing, and that all remedies,
either under this Agreement, by law or otherwise, shall be
cumulative and not alternative.
8.14 Consents. Any permission, consent or approval of any kind or
character under this Agreement shall be in writing and shall be
effective only to the extent specifically set forth in such writing.
8.15 SPECIFIC PERFORMANCE. THE PARTIES HERETO AGREE THAT
IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE
PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH
ITS SPECIFIC INTENT OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY
AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
INJUNCTIONS, WITHOUT BOND, TO PREVENT OR CURE BREACHES OF THE
PROVISIONS OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS
AND PROVISIONS HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO
WHICH THEY MAY BE ENTITLED BY LAW OR EQUITY, AND ANY PARTY SUED FOR
BREACH OF THIS AGREEMENT EXPRESSLY WAIVES ANY DEFENSE THAT A REMEDY
IN DAMAGES WOULD BE ADEQUATE.
8.16 Payment of Fees and Expenses. Each party shall be responsible
for paying its own fees, costs and expenses in connection with this
Agreement and the transactions herein contemplated.
8.17 Construction of Agreement. No provision of this Agreement
shall be construed against either party as the drafter thereof.
8.18 Section References. Unless otherwise stated, any reference
contained herein to a Section or subsection refers to the provisions
of this Agreement.
8.19 Variations of Pronouns. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine, or
neuter, singular or plural, as the context in which they are used
may require.
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IN WITNESS WHEREOF, the parties have caused this Stock Purchase
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first written above.
CUMULUS MEDIA INC.
By: /s/ Lewis W. Dickey, Jr.
Name: Lewis W. Dickey, Jr.
Title: President and CEO
BANC OF AMERICA CAPITAL INVESTORS
SBIC, L.P.
By: BANC OF AMERICA CAPITAL MANAGEMENT
SBIC, LLC, its General Partner
By: BANC OF AMERICA CAPITAL MANAGEMENT,
L.P., its Sole Member
By: BACM I GP, LLC, its general partner
By: /s/ Robert H. Sheridan, III
Its: Member
BA CAPITAL COMPANY, L.P.
By: BA SBIC MANAGEMENT, LLC,
its General Partner
By: BA EQUITY MANAGEMENT, L.P.,
its Sole Member
By: BA EQUITY MANAGEMENT GP, LLC,
its General Partner
By: /s/ Robert H. Sheridan, III
Its: Member