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. 7)
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)
June 29, 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 1,904,525
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,904,525
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,904,525
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
- ---------------------------------------------------------------------
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
1,904,525
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,904,525
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,904,525
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
- ---------------------------------------------------------------------
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
1,904,525
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,904,525
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,904,525
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
- ---------------------------------------------------------------------
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
1,904,525
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,904,525
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,904,525
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
- ---------------------------------------------------------------------
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
7,686,009
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,009
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
7,686,009
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9%
- ---------------------------------------------------------------------
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 5,781,484
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
--------------------------------------------------------
8 SHARED VOTING POWER
0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
5,781,484
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
5,781,484
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.8%
- ---------------------------------------------------------------------
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
5,781,484
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
5,781,484
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
5,781,484
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.8%
- ---------------------------------------------------------------------
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
5,781,484
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
5,781,484
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
5,781,484
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.8%
- ---------------------------------------------------------------------
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
5,781,484
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
5,781,484
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
5,781,484
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.8%
- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
=====================================================================
Item 1. Security and Issuer.
This Amendment No. 7 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, Amendment No. 5 filed on
February 8, 2006, and Amendment No. 6 filed on May 18, 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.
Amendment No. 6 to the Schedule 13D was filed on May 18, 2006
("Amendment No. 6") to report the entry into a stock purchase
agreement with the Company pursuant to which the Company agreed to
purchase an aggregate of up to 5 million shares of Class B Common
Stock from BA Capital and BACI.
This Amendment No. 7 to the Schedule 13D ("Amendment No. 7") is
being filed to report the closing under the stock purchase agreement
with the Company, pursuant to which the Company purchased an
aggregate of 5 million shares of Class B Common Stock from BA
Capital and BACI, 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. 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.
On May 9, 2006, BA Capital and BACI entered into a stock
purchase agreement with the Company (the "Purchase Agreement")
pursuant to which the Company agreed to purchase up to an aggregate
of 5 million shares Class B Common Stock from BA Capital and BACI,
subject to certain conditions, as more fully described in Item 6
below. On June 29, 2006, pursuant to the Purchase Agreement, the
Company purchased 5 million shares of Class B Common Stock from BA
Capital and BACI for a total consideration of $57,500,000.
NBCC purchased preferred shares of a predecessor to the Company
for investment purposes. As a result of this investment and the
subsequent sale of Class B Common Stock under the Purchase
Agreement, BA Capital now holds (i) 840,250 shares of Class A Common
Stock, (ii) 849,275 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 and the sale of Class B Common Stock under the Purchase
Agreement, BACI currently holds 5,781,484 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.
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. 7 relates to 7,686,009 shares of the
Company's Class A Common Stock, representing 17.9% of the Company's
outstanding shares of Class A Common Stock and 15.5% 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, 849,275 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 1,904,525
shares, or 5.1%, of the Class A Common Stock (determined in
accordance with Rule 13d-3(d)(1)). BACI currently holds 5,781,484
shares of Class B Common Stock. BACI beneficially owns 5,781,484
shares, or 13.8%, of the 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 2.3% of the Company's outstanding shares of Class
A Common Stock. If BA Capital were to (A) convert its 849,275
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 5,781,484 shares of Class B Common Stock
into an equivalent number of shares of Class A Common Stock, BA
Capital and BACI would together own 7,686,009 shares of Class A
Common Stock, representing 17.9% of the Company's then outstanding
shares of Class A Common Stock and 15.5% of the voting power.
The 7,686,009 shares of Class A Common Stock beneficially owned
by BA Capital and BACI represent 17.6% 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 15.5% of the voting
power (or, if the Class C Common Stock is entitled to one vote per
share, 17.6% 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, adjusted to reflect the effects of the Tender Offer
as disclosed in Amendment No. 4 to the Company's Schedule TO filed
June 23, 2006. Accordingly, the Reporting Persons have assumed for
purposes of this Amendment No. 7 that there are 36,197,508 shares of
Class A Common Stock outstanding, 6,630,759 shares of Class B Common
Stock outstanding and 644,871 shares of Class C Common Stock
outstanding, or a total of 43,078,138 shares of all classes of
Common Stock outstanding.
(b) BA Capital has sole voting and dispositive power with
respect to 1,904,525 shares of Class A Common Stock, which consists
of 840,250 shares of Class A Common Stock, 849,275 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 5,781,484 shares of Class A Common
Stock, which consists of 5,781,484 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 entered into the Purchase Agreement dated
May 9, 2006 with the Company 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 had 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") did not exceed $200 million, which it did not. On June 16,
2006, BA Capital and BACI exercised their option to sell the
additional 500,000 shares of Class B Common Stock to the Company
under the terms of the Purchase Agreement. Closing under the
Purchase Agreement occurred on June 29, 2006. At closing, BACI sold
3,869,279 shares of Class B Common Stock for an aggregate
consideration of $44,496,709 and BA Capital sold 1,130,721 shares of
Class B Common Stock for an aggregate consideration of $13,003,292.
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 herewith
18, 2006, by and among BA
Capital, 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 Incorporated
May 9, 2006, by and among BA by reference
Capital, BACI and the Company. to Exhibit
99.2 to
Amendment No.
6 to Schedule
13D filed May
18, 2006
99.3 Amended and Restated Incorporated
Registration Rights Agreement by reference
dated as of January 23, 2002, by to Exhibit
and among the Company, Aurora 99.3 to
and the parties listed therein. Amendment No.
2 to Schedule
13D filed
February 4,
2002
99.4 Shareholders Agreement dated as Incorporated
of March 28, 2002, by and by reference
between the Company and BACI to Exhibit
99.5 to
Amendment No.
3 filed April
3, 2002
99.5 Voting Agreement dated June 30, Incorporated
1998, by and among NBCC, the by reference
Company, Quaestus Management to Exhibit A
Corporation, DBBC of Georgia, to Schedule
LLC, CML Holdings, LLC, Richard 13D filed July
Weening and Lewis W. Dickey, Jr. 7, 1998
99.6 Registration Rights Agreement Incorporated
dated June 30, 1998, by and by reference
among the Company, NBCC, Heller to Exhibit B
Equity Capital Corporation, The to Schedule
State of Wisconsin Investment 13D filed July
Board and The Northwestern 7, 1998
Mutual Life Insurance Company
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.