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Form 8-A/A
(Amendment No. 1)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
CITADEL COMMUNICATIONS CORPORATION
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(Exact name of registrant as specified in its charter)
Nevada 86-074829
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
140 South Ash Avenue
Tempe, Arizona 85281
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(Address of Principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
N/A N/A
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form relates:
51011 (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $0.001
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered.
DESCRIPTION OF CAPITAL STOCK
Prior to the time this Registration Statement becomes effective, Citadel
Communications Corporation, a Nevada corporation (the "Company"), will undertake
a recapitalization of its capital stock (the "Recapitalization"). Following the
Recapitalization, the Company will be authorized to issue 200,000,000 shares of
Common Stock, par value $.001 per share (the "Common Stock"), 19,013,122 shares
of Series AA Convertible Preferred Stock, par value $.001 per share (the
"Convertible Preferred Stock"), and 20,000,000 shares of undesignated preferred
stock (the "Undesignated Preferred Stock").
The following is a description of certain provisions of the Company's
Certificate of Incorporation (the "Certificate of Incorporation") and Bylaws
(the "Bylaws"), as the Certificate of Incorporation and Bylaws are proposed to
be amended prior to the time this Registration Statement becomes effective, and
of Nevada's law on private corporations, Chapter 78 of the Nevada Revised
Statutes (the "NGCL"). The discussion gives effect to the Recapitalization.
GENERAL
Immediately following the Company's initial public offering of its Common
Stock (the "Offering"), there will be outstanding 15,180,664 shares of Common
Stock (16,212,783 shares if the underwriters' over-allotment option is exercised
in full), 9,506,561 shares of Convertible Preferred Stock and no shares of
Undesignated Preferred Stock.
Immediately prior to the consummation of the Offering, the Company's Board
of Directors will consist of four Class A Directors and one Class B Director.
Following the Offering, at each annual meeting of the stockholders of the
Company, one director will be elected by the holders of the Convertible
Preferred Stock (the "Class B Director") and the remaining directors will be
elected by the holders of the Common Stock and the Convertible Preferred Stock
voting as a single class (the "Class A Directors").
In connection with the Recapitalization, only ABRY Broadcast Partners II,
L.P. ("ABRY II") and ABRY/Citadel Investment Partners, L.P. ("ABRY/CIP") will
receive shares of Convertible Preferred Stock and thus will be entitled to elect
the Class B Director. Pursuant to an Amended and Restated Voting Trust Agreement
dated October 15, 1997, the Trustee thereunder (the "Voting Trustee") votes the
shares of ABRY II and ABRY/CIP.
VOTING RIGHTS OF COMMON STOCK AND CONVERTIBLE PREFERRED STOCK
Holders of the Common Stock and the Convertible Preferred Stock are entitled
to one vote per share on all matters submitted to a vote of stockholders
generally. Both classes vote together as a single class on all matters except
the election or removal of the Class B Director and when class voting is
required by applicable law. Only holders of Convertible Preferred Stock are
entitled to vote for the election of the Class B Director. Immediately after the
Offering, ABRY II and ABRY/CIP together will beneficially own all of the
outstanding Convertible Preferred Stock, representing approximately 38.5% of the
voting power of the outstanding capital stock of the Company, and the Voting
Trustee who votes such shares will have the power to elect the Class B Director
and to significantly influence the election of Class A Directors and other
matters submitted to a vote of stockholders.
DIVIDENDS ON COMMON STOCK AND CONVERTIBLE PREFERRED STOCK
Dividends must be paid on both the Common Stock and the Convertible
Preferred Stock at any time dividends are paid on either. The holders of the
Common Stock and the Convertible Preferred Stock are entitled to receive, pro
rata, such dividends as may be declared by the Board of Directors out of funds
legally available therefor. Any
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dividend so declared and payable in cash, capital stock of the Company (other
than Common Stock or Convertible Preferred Stock) or other property will be paid
equally, pro rata, on the Common Stock and the Convertible Preferred Stock.
Dividends and distributions payable in shares of Common Stock may only be paid
on Common Stock and dividends and distributions payable in shares of Convertible
Preferred Stock may only be paid on Convertible Preferred Stock. Pursuant to any
such dividend or distribution, each share of Convertible Preferred Stock will
receive a number of shares of Convertible Preferred Stock equal to the number of
shares of Common Stock payable on each share of Common Stock.
OTHER PROVISIONS APPLICABLE TO THE COMMON STOCK AND THE CONVERTIBLE PREFERRED
STOCK
There are no preemptive rights to subscribe for any additional securities
which the Company may issue, and there are no redemption provisions or sinking
fund provisions applicable to the Common Stock or the Convertible Preferred
Stock, nor is either class subject to calls or assessments by the Company.
In the event of any liquidation, dissolution or winding-up of the affairs of
the Company, holders of Common Stock and Convertible Preferred Stock will be
entitled to share ratably in the assets of the Company remaining after payment
or provision for payment of all of the Company's debts and obligations and
liquidation payments to holders of outstanding shares of Convertible Preferred
Stock or Undesignated Preferred Stock. The Convertible Preferred Stock is senior
to the Common Stock on liquidation to the extent of a liquidation preference of
$.001 per share.
In the event of a merger or consolidation to which the Company is a party,
each share of Common Stock and Convertible Preferred Stock will be entitled to
receive the same consideration.
To the extent an increase or decrease in the number of outstanding shares of
either Common Stock or Convertible Preferred Stock results from a stock split,
combination or consolidation of shares or other capital reclassification, the
Company is required to take parallel action with respect to the other class so
that the number of shares of each class outstanding immediately following the
stock split, combination or consolidation of shares or other capital
reclassification bears the same relationship to each other as the number of
shares of each class outstanding before such event.
OTHER PROVISIONS APPLICABLE TO CONVERTIBLE PREFERRED STOCK
Each share of Convertible Preferred Stock is convertible at any time at the
option of the holder into one share of Common Stock. In addition, each share of
Convertible Preferred Stock automatically converts into a share of Common Stock
at the time voting and dispositive power with respect thereto is held by a
person other than ABRY II, ABRY/CIP or an affiliate of either ABRY II or
ABRY/CIP. All shares of Convertible Preferred Stock will convert into shares of
Common Stock at such time that ABRY II, ABRY/CIP and their respective
affiliates, in the aggregate, no longer exercise sole or shared dispositive
control over at least 50% of the shares of Convertible Preferred Stock that ABRY
II and ABRY/CIP beneficially own at the time of consummation of the
Recapitalization.
UNDESIGNATED PREFERRED STOCK
The Board of Directors of the Company is authorized, without further action
of the stockholders, to issue up to 20,000,000 shares of Undesignated Preferred
Stock in one or more classes or series and to fix the designations, powers,
preferences and the relative participating, optional or other special rights of
the shares of each series and any qualifications, limitations and restrictions
thereon. No classes or series have been designated. Any Undesignated Preferred
Stock issued by the Company may rank prior to the Common Stock and the
Convertible Preferred Stock as to dividend rights, liquidation preference or
both, may have full or limited voting rights and may be convertible into shares
of Common Stock.
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The issuance of Undesignated Preferred Stock could have the effect of making
it more difficult for a third party to acquire, or of discouraging a third party
from, acquiring or seeking to acquire, a significant portion of the outstanding
Common Stock.
CERTAIN ANTI-TAKEOVER EFFECTS
Certificate of Incorporation and Bylaws. Certain provisions of the
Certificate of Incorporation and Bylaws summarized in the following paragraphs
may be deemed to have anti-takeover effects. These provisions may have the
effect of discouraging a future takeover attempt which is not approved by the
Board of Directors, but which individual Company stockholders may deem to be in
their best interests or in which stockholders may receive a substantial premium
for their shares over then-current market prices. As a result, stockholders who
might desire to participate in such a transaction may not have an opportunity to
do so.
Number of Directors; Removal; Filling Vacancies. The Certificate of
Incorporation and Bylaws provide that, for so long as any shares of Convertible
Preferred Stock are outstanding, the number of Class B Directors shall be one
and the number of Class A Directors shall not exceed six and shall be fixed from
time to time with the consent of a majority of the Board of Directors. Moreover,
the Certificate of Incorporation provides that Class A Directors may only be
removed with cause and that the Class B Director may be removed with or without
cause. Removal of a Class A Director requires the affirmative vote of the
holders of at least a majority of the outstanding shares of capital stock of the
Company then entitled to vote at an election of directors, and removal of a
Class B Director requires the affirmative vote of the holders of at least a
majority of the outstanding Convertible Preferred Stock. These provisions
prevent stockholders from removing any incumbent Class A Director without cause
and allow a majority of the incumbent directors to add additional Class A
Directors without approval of stockholders until the next annual meeting of
stockholders at which directors are elected. Only holders of Convertible
Preferred Stock may elect a director to fill a Class B Director vacancy.
Meetings of Stockholders. The Bylaws provide that a special meeting of
stockholders may be called only by the Chairman or the Board of Directors unless
otherwise required by law. The Bylaws provide that only those matters set forth
in the notice of the special meeting may be considered or acted upon at that
special meeting unless otherwise provided by law. In addition, the Bylaws set
forth certain advance notice and informational requirements and time limitations
on any director nomination or any new proposal which a stockholder wishes to
make at an annual meeting of stockholders.
No Stockholder Action by Written Consent. The Bylaws provide that any action
required or permitted to be taken by the stockholders of the Company at an
annual or special meeting of stockholders must be effected at a duly called
meeting and may not be taken or effected by a written consent of stockholders in
lieu thereof, except with respect to matters to be voted on by the holders of
the Convertible Preferred Stock voting as a separate class.
Foreign Ownership. The Certificate of Incorporation permits restriction on
the ownership, voting and transfer of the Company's capital stock in accordance
with the Communications Act of 1934, as amended (the "Communications Act"), and
the rules of the Federal Communications Commission (the "FCC") to prohibit
ownership of more than 20% of the Company's outstanding capital stock (or more
than 20% of the voting rights it represents) by or for the account of aliens or
corporations otherwise subject to domination or control by aliens. The
Certificate of Incorporation also authorizes the Company's Board to prohibit any
transfer of the Company's capital stock that would cause the Company to violate
this prohibition. The Company's Board of Directors may also prohibit the
ownership, voting or transfer of any portion of its outstanding capital stock to
the extent the ownership, voting or transfer of such portion would cause the
Company to violate, or would otherwise result in violation of, any provision of
the Communications Act or the rules, regulations and policies promulgated by the
FCC under the Communications Act. No stockholders may exercise any voting rights
the result of which would cause the Company to be in violation of the rules,
regulations or policies of the FCC.
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Nevada General Corporation Law. Under certain circumstances, the following
provisions of the NGCL may delay or make more difficult acquisitions or changes
of control of the Company and may make it more difficult to accomplish
transactions that stockholders may otherwise believe to be in their best
interests. Such provisions may also have the effect of preventing changes in the
Company's management. The Company's Certificate of Incorporation and Bylaws do
not exclude it from these provisions of the NGCL.
Control Share Acquisitions. Under Sections 78.378 to 78.3793 of the NGCL
(the "Control Share Act"), an "acquiring person," who acquires a "controlling
interest" in an "issuing corporation" may not exercise voting rights on any
"control shares" unless such voting rights are conferred by a majority vote of
the disinterested stockholders of the issuing corporation at an annual meeting
or at a special meeting of such stockholders held upon the request and at the
expense of the acquiring person. If the control shares are accorded full voting
rights and the acquiring person acquires control shares with a majority or more
of all the voting power, any stockholder, other than the acquiring person, who
does not vote for authorizing voting rights for the control shares, is entitled
to demand payment for the fair value of their shares, and the corporation must
comply with the demand. For the above provisions, "acquiring person" means
(subject to certain exceptions) any person who, individually or in association
with others, acquires or offers to acquire, directly or indirectly, a
controlling interest in an issuing corporation. "Controlling interest" means the
ownership of outstanding voting shares of an issuing corporation sufficient to
enable the acquiring person, individually or in association with others,
directly or indirectly, to exercise (i) one-fifth or more but less than
one-third, (ii) one-third or more but less than a majority and/or (iii) a
majority or more of the voting power of the issuing corporation in the election
of directors. The Control Share Act is triggered as a stockholder moves from one
level to the next. Voting rights must be conferred by a majority of the
disinterested stockholders as each threshold is reached and/or exceeded.
"Control Shares" means those outstanding voting shares of an issuing corporation
which an acquiring person (1) acquires or offers to acquire in an acquisition or
(2) acquires within 90 days immediately preceding the date when the acquiring
person became an acquiring person. "Issuing corporation" means a corporation
that is organized in Nevada, has 200 or more stockholders (at least 100 of whom
are stockholders of record and residents of Nevada) and does business in Nevada
directly or though an affiliated corporation. The above does not apply if the
articles of incorporation or bylaws of the corporation in effect on the 10th day
following the acquisition of a controlling interest by an acquiring person
provide that said provisions do not apply. The Company's Certificate of
Incorporation and Bylaws do not exclude it from the restrictions imposed by such
provisions. However, unless and until the Company has 200 or more stockholders
at least 100 of whom are resident in Nevada, the Control Share Act will not
apply to the Company.
Certain Business Combinations. Sections 78.411 to 78.444 of the NGCL (the
"Business Combinations Act") restrict the ability of a "resident domestic
corporation" to engage in any combination with an "interested stockholder" for
three years following the interested stockholder's date of acquiring the shares
that cause such stockholder to become an interested stockholder, unless the
combination or the purchase of shares by the interested stockholder on the
interested stockholder's date of acquiring the shares that cause such
stockholder to become an interested stockholder is approved by the board of
directors of the resident domestic corporation before that date. If the
combination was not previously approved, the interested stockholder may effect a
combination after the three-year period only if such stockholder receives
approval from a majority of the disinterested shares or the offer meets certain
fair price criteria. For the above provisions, "resident domestic corporation"
means a Nevada corporation that has 200 or more stockholders. The provisions of
the Business Combinations Act do not apply to any combination of a resident
domestic corporation which does not, as of the date of acquiring shares, have a
class of voting shares registered with the Securities and Exchange Commission
(the "Commission") under Section 12 of the Securities Exchange Act of 1934, as
amended, unless the corporation's articles of incorporation provide otherwise.
"Interested stockholder," when used in reference to any resident domestic
corporation, means any person, or its subsidiaries, who is (i) the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the
outstanding voting shares of the resident domestic corporation or (ii) an
affiliate or associate of the resident domestic corporation and, at any time
within three years immediately before the date in question, was the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the then
outstanding shares of the resident domestic corporation. The above does not
apply to corporations that so elect in a charter amendment approved by a
majority of the
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disinterested shares. Such a charter amendment, however, would not become
effective for 18 months after its passage and would apply only to stock
acquisitions occurring after its effective date. The Company's Certificate of
Incorporation does not exclude it from the restrictions imposed by such
provisions. If, as is likely, the Company will have at least 200 stockholders
following the Offering, the Business Combinations Act will apply to the Company.
Directors' Duties. Section 78.138 of the NGCL allows directors and officers,
in exercising their respective powers to further the interests of the
corporation, to consider the interests of the corporation's employees,
suppliers, creditors and customers. They can also consider the economy of the
state and the nation; the interests of the community and of society and the long
and short-term interests of the corporation and its stockholders, including the
possibility that these interests may be best served by the continued
independence of the corporation. Directors may resist a change or potential
change in control if the directors, by a majority vote of a quorum, determine
that the change or potential change is opposed to or not in the best interest of
the corporation. In so determining, the board of directors may consider the
interests described above or have reasonable grounds to believe that, within a
reasonable time, the debt created as a result of the change in control would
cause the assets of the corporation or any successor to be less than the
liabilities or would render the corporation or any successor insolvent or lead
to bankruptcy proceedings.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS
Limitations on Liabilities. Consistent with the NGCL, the Certificate of
Incorporation contains a provision eliminating or limiting liability of
directors to the Company and its stockholders for damages for breach of
fiduciary duty as a director. The provision does not, however, eliminate or
limit the personal liability of a director (i) for acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law or (ii) for
unlawful distributions in violation of the NGCL. This provision offers persons
who serve on the Board of Directors of the Company protection against awards of
monetary damages resulting from breaches of their fiduciary duty, except as
indicated above. As a result of this provision, the ability of the Company or a
stockholder thereof to successfully prosecute an action against a director for a
breach of his fiduciary duty is limited. However, the provision does not affect
the availability of equitable remedies such as an injunction or rescission based
upon a director's breach of his fiduciary duty. The Commission has taken the
position that the provision will have no effect on claims arising under the
federal securities laws.
Indemnification. The Certificate of Incorporation and Bylaws provide for
mandatory indemnification rights to the maximum extent permitted by applicable
law, subject to limited exceptions, to any director or officer of the Company
who, by reason of the fact that he is a director or officer of the Company, is
involved in a legal proceeding of any nature. Such indemnification rights
include reimbursement for expenses incurred by such director or officer in
advance of the final disposition of such proceeding in accordance with the
applicable provisions of the NGCL. The Company also maintains directors' and
officers' liability insurance.
Item 2. Exhibits.
1. Form of Amended and Restated Certificate of Incorporation of
Registrant (previously filed).
2. Form of Amended and Restated By-laws of Registrant
(previously filed).
3. Form of Recapitalization Agreement (previously filed).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
CITADEL COMMUNICATIONS CORPORATION
By: /s/ LAWRENCE R. WILSON
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Lawrence R. Wilson
Chairman and Chief Executive Officer
Date: June 29, 1998
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Exhibit Index
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Exhibit Description
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1. Form of Amended and Restated Certificate of Incorporation of
Registrant (previously filed).
2. Form of Amended and Restated By-laws of Registrant
(previously filed).
3. Form of Recapitalization Agreement (previously filed).
