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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.....)*
Citadel Communications Corporation
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(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
172853202
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(CUSIP)
James P. Koeneman
200 West Madison Street, Suite 3510
Chicago, Illinois 60606
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 30, 1998
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(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-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 Section 240.13d-7(b) for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP NO. 172853202
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1) Names of Reporting Persons IRS Identification Nos of Above Persons
Baker, Fentress & Company
2) Check the Appropriate Box if a Member of a Group
(a) [__]
(b) [__]
3) SEC use only
4) Source of Funds
WC
5) Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
6) Citizenship or Place of Organization
Delaware
Number of (7) Sole Voting Power 2,239,236
Shares Beneficially (8) Shared Voting Power
Owned by Each (9) Sole Dispositive Power 2,239,236
Reporting Person (10) Shared Dispositive Power
With
11) Aggregate Amount Beneficially Owned by each Reporting Person
2,239,236
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
13) Percent of Class Represented by Amount in Row (11)
14.75%
14) Type of Reporting Person
IV
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Item 1. SECURITY AND ISSUER
This statement relates to the common stock, $.001 par value per share
("Common Stock"), of Citadel Communications Corporation, a Nevada corporation
(the "Company"). The Company's principal executive offices are located at 140
South Ash Avenue, Tempe, Arizona 85821.
Item 2. IDENTITY AND BACKGROUND
This Schedule 13D is filed by Baker, Fentress & Company, a Delaware
corporation ("BKF"). BKF's principal business is that of an investment company
registered under Section 8 of the Investment Company Act of 1940. Its principal
executive offices are located at 200 West Madison Street, Suite 3510, Chicago,
Illinois 60606. The name, business address and present principal occupation of
each of the directors and executive officers of BKF are set forth in Annex I,
which is attached hereto and incorporated herein by reference.
During the last five years, neither BKF nor any of the persons listed on
Annex I has been convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors).
During the last five years, neither BKF nor any of the person listed on
Annex I has been a party to any civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding 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 any violation with respect to such laws.
All of the citizens identified on Annex I are citizens of the United States
of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On June 28, 1996, in exchange for another series of preferred stock of the
Company then outstanding, BKF received 746,412 shares of Old Preferred Stock (as
hereinafter defined) for an aggregate purchase price of $1,860,996.
Immediately prior to the recently completed initial public offering (the
"Offering") by the Company (as discussed below), the Company undertook a
recapitalization (the "Recapitalization"). Prior to the Recapitalization, the
Company's capital stock consisted of three classes of common stock ("Old Common
Stock") and seven classes of preferred stock (including those shares of Series A
Convertible Preferred Stock held by BKF) (the "Old Preferred Stock"). In
connection with the Recapitalization, each outstanding share of Old Common Stock
and each outstanding share of Old Preferred Stock, other than those shares of
Old Preferred Stock owned beneficially or of record by ABRY Broadcast
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Partners II, L.P. ("ABRY II") and ABRY/Citadel Investment Partners, L.P.
("ABRY/CIP"), converted into three shares of Common Stock. The outstanding
shares of Old Preferred Stock owned beneficially or of record by ABRY II and
ABRY/CIP converted into three shares of convertible preferred stock, par value
$.001 per share (the "Convertible Preferred Stock"). As a result of the
Recapitalization, BKF held 2,239,236 of Common Stock.
After giving effect to the Recapitalization, holders of the Common Stock,
including BKF, and holders of the Convertible Preferred Stock were and 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, for which only
the holders of Convertible Preferred Stock are entitled to vote.
ITEM 4. PURPOSE OF TRANSACTION
Except as set forth in this Item 4, the Company has no present plans or
proposals that relate to or that could result in any of the actions specified in
clauses (a) through (j) of Item 4 of Schedule 13D. The responses to Items 3 and
6 of this Schedule 13D are hereby incorporated by reference into the response to
Item 4.
BKF initially acquired the shares of Old Preferred Stock for investment
purposes, and acquired the Common Stock pursuant to the Recapitalization.
Depending upon market and other considerations, BKF may acquire additional
Common Stock if such securities become available at prices that are attractive.
However, depending on market and other conditions, BKF may dispose of all or a
portion of the Common Stock that it now, or hereinafter owns, subject to a
"lockup" period of 180 days that will expire on December 27, 1998.
Scott E. Smith, Executive Vice President of BKF, is a member of the Board
of Directors of the Company. Mr. Smith has been a member of the Board of
Directors of the Company since 1993 (and of the predecessor of the Company since
1992) and, prior to the Offering, served in such capacity pursuant to the Fourth
Amended and Restated Voting Agreement dated as of October 15, 1997 (the "Voting
Agreement"), by and among the Company and certain other stockholders of the
Company, including BKF. In connection with the Offering, the Voting Agreement
was terminated and Mr. Smith became a Class A Director of the Company to serve
in such capacity until reelected at the next annual meeting of the stockholders
of the Company. Mr. Smith currently also serves as a member of the Compensation
Committee of the Board of Directors.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
BKF has been informed by the Company that immediately following the
Offering, there were 15,180,664 shares of Common Stock issued and outstanding
shares. BKF owns approximately 14.75% of the outstanding shares of Common Stock.
That amount
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of shares issued and outstanding does not include (i) shares that may be issued
by certain underwriters in a over-allotment option in connection with the
Offering, (ii) certain other shares of Common Stock issuable upon exercise of
options, or (iii) shares of Common Stock reserved under the Company's 1996
Equity Incentive Plan. The amount of shares of Common Stock outstanding also
does not give effect to the conversion of shares of Convertible Preferred Stock
which are convertible on a one-for-one basis into shares of Common Stock at the
option of the holders thereof. Pursuant to Rule 13d-3(d)(1)(i) of the Securities
Exchange Act of 1934, shares of Common Stock which are not outstanding but which
are subject to among other things the exercise or an option, warrant or right or
through the conversion of a security, are deemed to be outstanding for the
purpose of computing the percentage of outstanding securities of the shares of
Common Stock owned by the person holding such rights, but are not deemed to be
outstanding for purposes of computing the percentage of such shares owned by any
other person.
Had the Convertible Preferred Stock converted into shares of Common Stock
as of the date hereof, 24,687,225 share of Common Stock would be issued and
outstanding and BKF would be deemed to the beneficial owner of 9.1% of the
issued and outstanding shares of Common Stock.
On June 28, 1996, BKF, along with certain other stockholders of Company,
entered into the Third Amended and Restated Registration Rights Agreement with
the Company pursuant to which the Company, under circumstances, is required to
register their shares of Common Stock under the Securities Act of 1933 for offer
and sale to the public.
Except in connection with the transaction described herein, neither BKF
nor, to the best of its knowledge, any person listed in Annex I hereto, has
effected any transactions in the securities of the Company during the preceding
60 days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The responses to Item 4 of this Schedule 13D hereby incorporated by
reference into the response to Item 6.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
1. Fourth Amended and Restated Voting Agreement dated as of October 15,
1997
2. Third Amended and Restated Registration Rights Agreement dated
June 28, 1996 and amendments thereto.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: July 9, 1998
BAKER, FENTRESS & COMPANY
By: /s/ Scott E. Smith
Executive Vice President
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ANNEX I
Set forth below are the names and present principal occupation or
employment of each director and executive officer of BKF. Except for the person
whose business address is set forth below following their occupations, the
business address of each of the persons listed below is the same as that set
forth in Item 2.
<TABLE>
<CAPTION>
Position with BKF and Present Principal
Name Occupation and Business Address
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<S> <C>
Frederick S. Addy Director of BKF; retired; 5300 Arbertum
Cove, Austin, Tx 78746
Bob D. Allen Director of BKF; Chairman, president, chief
executive officer and director of
Consolidated-Tomoka Land Co.; 149 South
Ridgewood Avenue, Daytona Beach, FL 32124
Jessica M. Bibliowicz Director of BKF; President and chief
operating officer of John A. Levin & Co.,
Inc. ("LEVCO") and Levin Management Co.,
Inc. ("LEVCO Mgmt"); One Rockefeller Plaza,
New York, New York 10020
Eugene V. Fife Director of BKF; President, chief executive
officer and co-chairman of the board of
directors of Multimedia Medical Systems;
limited partner of Goldman, Sachs & Co.;
400 Ray C. Hunt Drive, Suite 380,
Charlottesville, VA 22903
J. Barton Goodwin Director of BKF; Managing director of BCI
Advisors, Inc.; general partner of Bridge
investors II and Teaneck Associates; member
of GroCap Investors, L.L.C. and Glenpointe
Associates, LLC; Glenpointe Centre West,
Teaneck, NJ 07666
James P. Gorter Director of BKF; Chairman of the board of
BKF; limited partner of Goldman, Sachs & Co.
David D. Grumhaus Director of BKF; President of Casey
Travel
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Corporation; 10 South Riverside Plaza, Room
1404; Chicago, IL 60606
Jeffrey A. Kigner Director of BKF; Co-chairman of LEVCO and
LEVCO Mgmt and chief investment officer of
LEVCO; One Rockefeller Plaza, New York, New
York 10020
John A. Levin Director of BKF; President and chief
executive officer of BKF; co-chairman and
chief executive office of LEVCO and LEVCO
Mgmt; One Rockefeller Plaza, New York, New
York 10020
Burton G. Malkiel Director of BKF; Professor of Economics,
Princeton University; Economics Department,
Fischer Hall, Prospect Avenue, Princeton,
NJ 08544
David D. Peterson Director of BKF; retired; 707 Skokie Blvd.,
Suite 420, Northbrook, IL 60062
William H. Springer Director of BKF; retired; 701 Morningside
Drive, Lake Forest, IL 60045
Dean J. Takahashi Director of BKF; senior director of
investments, Yale University; Yale
University, 230 Prospect St., New Haven CT
06511
James P. Koeneman Executive vice president and secretary of
BKF
Scott E. Smith Executive vice president of BKF
Julie Heironimus Treasurer and assistant secretary of BKF
</TABLE>
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Exhibit 1
FOURTH AMENDED AND RESTATED VOTING AGREEMENT
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This FOURTH AMENDED AND RESTATED VOTING AGREEMENT dated as of October 15,
1997 (the "Agreement"), by and among (i) CITADEL COMMUNICATIONS CORPORATION, a
Nevada corporation (the "Company"); (ii) Harlan Levy, as the trustee pursuant to
the Voting Trust Agreement described below (including any additional or
successor trustee thereunder, the "Voting Trustee"); (iii) BAKER FENTRESS &
COMPANY, a Delaware corporation ("BFC"); (iv) FINOVA CAPITAL CORPORATION, a
Delaware corporation ("FINOVA"); (v) OPPENHEIMER & CO., INC., a Delaware
corporation ("Oppenheimer"); (vi) THE ENDEAVOUR CAPITAL FUND LIMITED
PARTNERSHIP, an Oregon limited partnership ("Endeavour"); (vii) JOSEPH P.
TENNANT, THE SCHAFBUCH FAMILY TRUST u/a/d 2-15-94, BABSON CAPITAL PARTNERS
LIMITED PARTNERSHIP, an Oregon limited partnership, TAL JOHNSON, EDWARD T. HARDY
and RALPH W. MCKEE (collectively, the "Endeavour Co-Investors"); (viii) PHILIP
J. URSO ("Urso"); (ix) PHILLIP NORTON, RICHARD POLOHEK, KAREN KUTNIEWSKI, PAT
BOWEN, TOM JENKINS, JULIET RICE, JEFF THOMPSON, M. LINDA URSO and MARK URSO
(collectively, the "Urso Co-Investors"); (x) TED L. SNIDER, SR., JANE J. SNIDER,
TED L. SNIDER, JR. and CALVIN ARNOLD (collectively, the "Snider Investors"); and
(xi) LAWRENCE R. WILSON ("LRW") and CLAIRE WILSON ("CW").
RECITALS
A. LRW and CW sometimes are herein collectively referred to as "Wilson."
The Voting Trustee, BFC, FINOVA, Oppenheimer, Endeavour, the Endeavour Co-
Investors, Urso, the Urso Co-Investors and the Snider Investors are sometimes
collectively referred to herein as the "Investors" and individually as an
"Investor." The Investors and Wilson are sometimes collectively referred to
herein as "Stockholders" and individually as a "Stockholder." Capitalized terms
used and not otherwise defined in this Agreement shall have the meanings
ascribed to such terms in Section 1 hereof.
B. As of March 17, 1997, the Company and certain other parties entered
into that certain Third Amended and Restated Voting Agreement dated as of such
date, which agreement was subsequently amended by the First Amendment thereto
dated as of June 30, 1997 and the Second Amendment thereto dated as of September
26, 1997 (as so amended, the "Voting Agreement").
C. On March 17, 1997, ABRY Broadcast Partners II, L.P., a Delaware
limited partnership ("ABRY"), and ABRY/Citadel Investment Partners, L.P., a
Delaware limited partnership ("ABRY/CIP"), contributed the shares of the
Company's capital stock which were then held by them, and agreed to contribute
all other shares of the Company's capital stock which thereafter may be acquired
by them, to a voting trust (the "Voting Trust") established pursuant to a
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Voting Trust Agreement dated as of March 17, 1997 among the Company, ABRY,
ABRY/CIP and the initial Voting Trustee, which agreement has been amended as of
the date of this Agreement (as so amended, and as in effect from time to time,
the "Voting Trust Agreement"). ABRY, ABRY/CIP and the other Persons who may be
holders of certificates issued by the Voting Trust from time to time are express
third-party beneficiaries of this Agreement. For purposes of this Agreement, the
Voting Trustee will be deemed to hold the capital stock of the Company which is
in the Voting Trust.
D. As of the date hereof, the following Stockholders own, beneficially
and (except in the case of ABRY and ABRY/CIP) of record the following Equity
Securities in the Company: ABRY -- 1,896,222.301 shares of the Series C
Preferred Stock (which are held of record by the Voting Trustee) and 924,057.492
shares of the Series D Preferred Stock (which are held of record by ABRY);
ABRY/CIP -- 234,364.555 shares of the Series C Preferred Stock (which are held
of record by the Voting Trustee) and 114,209.352 shares of the Series D
Preferred Stock (which are held of record by ABRY/CIP); BFC -- 746,411.860
shares of the Series A Preferred Stock; FINOVA -- 74,488.000 shares of the Class
C Common Stock; Oppenheimer -- 17,200.724 shares of the Series B Preferred
Stock; Endeavour -- 418,612 shares of Series E Preferred Stock; the Endeavour
Co-Investors -- 64,117 shares of Series E Preferred Stock; Urso --120,357.05
shares of Series F Preferred Stock; the Urso Co-Investors --32,906.95 shares of
Series F Preferred Stock; the Snider Investors -- 360,636 shares of Series G
Preferred Stock; and Wilson -- 756,225.000 shares of the Class A Common Stock.
E. The parties to the Voting Agreement have agreed to make certain
changes to the Voting Agreement (including providing for the joinder in the
Voting Agreement by the Snider Investors) and, in this light, desire to amend
and restate the Voting Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree that the
Voting Agreement is amended and restated in its entirety as follows:
1. Definitions. For purposes of this Agreement, the following terms
have the meanings set forth below.
"Agreement" shall mean this Agreement.
"ABRY" has the meaning set forth in the preamble to this Agreement.
"ABRY/CIP" has the meaning set forth in the preamble to this
Agreement.
"Affiliate" of any Person means any Person that directly or indirectly
controls, is controlled by, or is under common control with such Person and,
with respect to an individual, such
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individual's spouse and descendants (whether natural or adopted) and any trust
solely for the benefit of such individual and/or his or her spouse and/or
descendants. For purposes hereof, (a) each of Endeavour and the Endeavour Co-
Investors will be deemed to be "Affiliates" of one another, (b) each of Urso and
the Urso Co-Investors will be deemed to be "Affiliates" of one another, and (c)
each of the Snider Investors will be deemed to be "Affiliates" of one another.
"BFC" has the meaning set forth in the preamble to this Agreement.
"BFC Director" has the meaning set forth in Section 2.1(b)(ii).
"BFC Stock" means (i) Series A Preferred Stock held by BFC on the date
of this Agreement, (ii) Class A Common Stock issued or issuable upon the
conversion of any Series A Preferred Stock described in clause (i) above, and
(iii) Equity Securities issued or issuable with respect to any Equity Securities
referred to in any of clauses (i) and (ii) above or this clause (iii) by way of
any stock dividend or stock split, or in connection with a combination or
exchange of shares, recapitalization, merger, consolidation, reorganization or
otherwise. As to any particular securities constituting BFC Stock, such
securities shall continue to constitute BFC Stock in the hands of any permitted
transferee thereof, but will cease to constitute BFC Stock when they have been
disposed of in a Public Sale.
"BFC Underlying Common Stock" means all BFC Stock which is Class A
Common Stock. For purposes of this Agreement, any Person who holds any BFC Stock
which is not Class A Common Stock will be deemed to be the Holder of the Class A
Common Stock obtainable upon the conversion, exercise or exchange to the fullest
extent possible of such BFC Stock (including the conversion, exercise or
exchange of all other BFC Stock directly or indirectly obtainable upon any such
conversion, exercise or exchange), without regard to any restriction or
limitation on any such conversion, exercise or exchange.
"Board" means the Company's board of directors.
"Certificate Of Incorporation" means the Seventh Amended and Restated
Certificate of Incorporation of the Company as in effect on the date hereof.
"Citadel" means Citadel Broadcasting Company, a Nevada corporation.
"Class A Common Stock" means the voting Class A Common Stock of the
Company, par value $.001 per share.
"Class B Common Stock" means the nonvoting Class B Common Stock of the
Company, par value $.001 per share.
"Class C Common Stock" means the nonvoting Class C Common Stock of the
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Company, par value $.001 per share.
"Common Stock" means, collectively, the Company's Class A Common
Stock, Class B Common Stock and Class C Common Stock.
"Company" has the meaning set forth in the preamble to this Agreement.
"CW" has the meaning set forth in the recitals to this Agreement.
"Endeavour" has the meaning set forth in the preamble to this
Agreement.
"Endeavour Co-Investors" has the meaning set forth in the preamble to
this Agreement.
"Endeavour Director" has the meaning set forth in Section 2.1(b)(iv)
hereof.
"Endeavour Stock" means (i) Series E Preferred Stock held by Endeavour
or by the Endeavour Co-Investors on the date of this Agreement, (ii) Class A
Common Stock issued or issuable upon conversion of any Series E Preferred Stock
described in clause (i) above, (iii) Equity Securities of the Company issued or
issuable with respect to any Equity Securities referred to in clauses (i) or
(ii) above or this clause (iii) by way of any stock dividend or stock split, or
in connection with a combination or exchange of shares, recapitalization,
merger, consolidation, reorganization or otherwise. As to any particular
securities constituting Endeavour Stock, such securities shall continue to
constitute Endeavour Stock in the hands of any permitted transferee thereof, but
will cease to constitute Endeavour Stock when they have been disposed of in a
Public Sale.
"Endeavour Underlying Common Stock" means all Endeavour Stock which is
Class A Common Stock. For purposes of this Agreement, any Person who holds any
Endeavour Stock which is not Class A Common Stock will be deemed to be the
Holder of the Class A Common Stock obtainable upon the conversion, exercise or
exchange to the fullest extent possible of such Endeavour Stock (including the
conversion, exercise or exchange of all other Endeavour Stock directly or
indirectly obtainable upon any such conversion, exercise or exchange), without
regard to any restriction or limitation on any such conversion, exercise or
exchange.
"Equity Securities" of any Person means (i) any capital stock,
partnership, membership, joint venture or other ownership or equity interest,
participation or securities (whether voting or non-voting, whether preferred,
common or otherwise, and including any stock appreciation, contingent interest
or similar right) and (ii) any option, warrant, security or other right
(including debt securities) directly or indirectly convertible into or
exercisable or exchangeable for, or otherwise directly or indirectly to acquire,
any stock, interest, participation or security described in clause (i) above.
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"Exchangeable Preferred Stock" means certain exchangeable preferred
stock of Citadel, as described in a certain Offering Memorandum dated June 30,
1997.
"Executive Director" has the meaning set forth in Section 2.1(b)(iii)
hereof.
"FINOVA" has the meaning set forth in the preamble to this Agreement.
"Investor" and "Investors" have the meanings set forth in the preamble
to this Agreement.
"Investor Stock" means:
(i) Series A Preferred Stock held by BFC on the date hereof,
(ii) Class A Common Stock issued or issuable upon the conversion of
any Series A Preferred Stock described in clause (i) above,
(iii) Series B Preferred Stock held by Oppenheimer on the date of
this Agreement,
(iv) Class A Common Stock issued or issuable upon the conversion of
any Series B Preferred Stock described in clause (iii) above,
(v) Class C Preferred Stock and Class D Preferred Stock held in
the Voting Trust (for the benefit of ABRY and ABRY/CIP) on the date of this
Agreement or issued or issuable directly or indirectly upon the conversion
of any such Class C Preferred Stock or Class D Preferred Stock,
(vi) Common Stock issued or issuable directly or indirectly upon
the conversion of any Series C Preferred Stock or Series D Preferred Stock
described in clause (v) above or any Common Stock described in this clause
(vi),
(vii) Series E Preferred Stock held by Endeavour or by the Endeavour
Co-Investors on the date of this Agreement,
(viii) Class A Common Stock issued or issuable upon conversion of any
Series E Preferred Stock described in clause (vii) above,
(ix) Series F Preferred Stock held by Urso or by the Urso Co-
Investors on the date of this Agreement,
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(x) Class A Common Stock issued or issuable upon the conversion of
any Series F Preferred Stock described in clause (ix) above,
(xi) Series G Preferred Stock held by the Snider Investors on the
date of this Agreement,
(xii) Class A Common Stock issued or issuable upon the conversion of
any Series G Preferred Stock described in clause (xi) above, and
(xiii) Equity Securities issued or issuable with respect to any
Equity Securities referred to in any of clauses (i) through (xii) above or
this clause (xiii) by way of any stock dividend or stock split, or in
connection with a combination or exchange of shares, recapitalization,
merger, consolidation, reorganization or otherwise.
As to any particular securities constituting Investor Stock, such securities
shall continue to constitute Investor Stock in the hands of any permitted
transferee thereof, but will cease to constitute Investor Stock when they have
been disposed of in a Public Sale.
"LRW" has the meaning set forth in the preamble to this Agreement.
"Oppenheimer" has the meaning set forth in the preamble to this
Agreement.
"Person" means any individual, corporation, association, limited
liability company, partnership, governmental agency or entity or any other
entity.
"Preferred Stock" means, collectively, the Company's Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series G
Preferred Stock and any other preferred stock authorized by the Company pursuant
to the terms of the Certificate of Incorporation (including pursuant to any
"Certificate of Designation" referred to therein).
"Process Agent" has the meaning set forth in Section 6.13 hereof.
"Public Sale" means any sale of Stockholder Shares (i) to the public
pursuant to a public offering registered under the Securities Act or (ii)
following a Qualified Public Offering, to the public pursuant to the provisions
of Rule 144 under the Securities Act (or any similar provision then in force).
"Qualified Public Offering" means the closing of the issuance and sale
of Common Stock in an underwritten public offering which is registered pursuant
to the Securities Act and which results in the receipt by the Company of cash
proceeds of at least $25,000,000 (net of applicable commissions, discounts and
expenses) and in which the offering price per share to the
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<PAGE>
public (without reduction for discounts, commissions or other charges or
expenses) is consistent with a fully-distributed equity valuation of the Company
which is not less than the result obtained by multiplying 10.5 by the Company's
consolidated pro forma cash flow for the four quarters following such closing
(as determined in good faith by the Board).
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"SERIES A PREFERRED STOCK" shall mean the voting Series A Convertible
Preferred Stock of the Company, par value $.001 per share.
"SERIES B PREFERRED STOCK" shall mean the voting Series B Convertible
Preferred Stock of the Company, par value $.001 per share.
"SERIES C PREFERRED STOCK" shall mean the voting Series C Convertible
Preferred Stock of the Company, par value $.001 per share.
"SERIES D PREFERRED STOCK" shall mean the nonvoting Series D
Convertible Preferred Stock of the Company, par value $.001 per share.
"SERIES E PREFERRED STOCK" shall mean the voting Series E Convertible
Preferred Stock of the Company, par value $.001 per share.
"SERIES F PREFERRED STOCK" shall mean the voting Series F Convertible
Preferred Stock of the Company, par value $.001 per share.
"SERIES G PREFERRED STOCK" shall mean the voting Series G Convertible
Preferred Stock of the Company, par value $.001 per share.
"SNIDER DIRECTOR" has the meaning set forth in Section 2.1(b)(ii)
hereof.
"SNIDER INVESTORS" has the meaning set forth in the preamble to this
Agreement.
"SNIDER STOCK" means (i) Series G Preferred Stock held by the Snider
Investors on the date of this Agreement, (ii) Class A Common Stock issued or
issuable upon conversion of any Series G Preferred Stock described in clause (i)
above, (iii) Equity Securities of the Company issued or issuable with respect to
any Equity Securities referred to in clauses (i) or (ii) above or this clause
(iii) by way of any stock dividend or stock split, or in connection with a
combination or exchange of shares, recapitalization, merger, consolidation,
reorganization or otherwise. As to any particular securities constituting
Snider Stock, such securities shall continue to constitute Snider Stock in the
hands of any permitted transferee thereof, but will cease to constitute Snider
Stock when they have been disposed of in a Public Sale.
-7-
<PAGE>
"SNIDER UNDERLYING COMMON STOCK" means all Snider Stock which is Class
A Common Stock. For purposes of this Agreement, any Person who holds any Snider
Stock which is not Class A Common Stock will be deemed to be the Holder of the
Class A Common Stock obtainable upon the conversion, exercise or exchange to the
fullest extent possible of such Snider Stock (including the conversion, exercise
or exchange of all other Snider Stock directly or indirectly obtainable upon any
such conversion, exercise or exchange), without regard to any restriction or
limitation on any such conversion, exercise or exchange.
"STOCKHOLDER" and "STOCKHOLDERS" have the meaning set forth in the
preamble to this Agreement. "STOCKHOLDER SHARES" means (i) Investor Stock
described in clauses (i) through (xiii) of the definition of the term "Investor
Stock," (ii) Common Stock held by Wilson on the date hereof, (iii) options or
other rights to acquire Common Stock issued prior to, on or after the date of
this Agreement to Wilson, (iv) Common Stock issued or issuable upon the exercise
of any option or other right described in clause (iii) above, and (v) Equity
Securities issued or issuable with respect to any Equity Securities referred to
in any of clauses (i) through (iv) above or this clause (v) by way of any stock
dividend or stock split, or in connection with a combination or exchange of
shares, recapitalization, merger, consolidation, reorganization or otherwise. As
to any particular securities constituting Stockholder Shares, such securities
will continue to constitute Stockholder Shares in the hands of any permitted
transferee thereof, but will cease to constitute Stockholder Shares when they
have been disposed of in a Public Sale.
"SUB BOARD" has the meaning set forth in Section 2.1(c) hereof.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, association, limited liability company or other business entity of
which (a) if a corporation, a majority of the total voting power of Equity
Securities entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (b) if a
partnership, association or other business entity, a majority of the partnership
or other Equity Securities thereof is at the time owned or controlled, directly
or indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes of this Agreement, a Person or Persons will be
deemed to have a majority ownership interest in a partnership, association or
other business entity if such Person or Persons are allocated a majority of
partnership, association or other business entity gains or losses or control the
managing director or general partner of such partnership, association or other
business entity.
"TRANSFER" means to sell, transfer, assign, pledge, hypothecate or
otherwise dispose of, in any manner whatsoever.
-8-
<PAGE>
"UNDERLYING COMMON STOCK" means all Stockholder Shares which are Class
A Common Stock. For purposes of this Agreement, any Person who holds any
Stockholder Shares which are not Class A Common Stock will be deemed to be the
Holder of the Class A Common Stock obtainable upon the conversion, exercise or
exchange to the fullest extent possible of such Stockholder Shares (including
the conversion, exercise or exchange of all other Stockholder Shares directly or
indirectly obtainable upon any such conversion, exercise or exchange), without
regard to any restriction or limitation on any such conversion, exercise or
exchange.
"URSO" has the meaning set forth in the preamble to this Agreement.
"URSO CO-INVESTORS" has the meaning set forth in the preamble to this
Agreement.
"URSO STOCK" means (i) Series F Preferred Stock held by Urso and the
Urso Co-Investors on the date of this Agreement, (ii) Class A Common Stock
issued or issuable upon conversion of any Series F Preferred Stock described in
clause (i) above, (iii) Equity Securities of the Company issued or issuable with
respect to any Equity Securities referred to in clauses (i) or (ii) above or
this clause (iii) by way of any stock dividend or stock split, or in connection
with a combination or exchange of shares, recapitalization, merger,
consolidation, reorganization or otherwise. As to any particular securities
constituting Urso Stock, such securities shall continue to constitute Urso Stock
in the hands of any permitted transferee thereof, but will cease to constitute
Urso Stock when they have been disposed of in a Public Sale.
"URSO UNDERLYING COMMON STOCK" means all Urso Stock which is Class A
Common Stock. For purposes of this Agreement, any Person who holds any Urso
Stock which is not Class A Common Stock will be deemed to be the Holder of the
Class A Common Stock obtainable upon the conversion, exercise or exchange to the
fullest extent possible of such Urso Stock (including the conversion, exercise
or exchange of all other Urso Stock directly or indirectly obtainable upon any
such conversion, exercise or exchange), without regard to any restriction or
limitation on any such conversion, exercise or exchange.
"VOTING TRUST" has the meaning set forth in the preamble to this
Agreement.
"VOTING TRUST AGREEMENT" has the meaning set forth in the preamble to
this Agreement.
"VOTING TRUST DIRECTOR" has the meaning set forth in Section 2.1(b)(i)
hereof.
"VOTING TRUSTEE" has the meaning set forth in the preamble to this
Agreement.
"VOTING TRUST STOCK" means (i) Class C Preferred Stock and Class D
Preferred Stock held in the Voting Trust (for the benefit of ABRY and ABRY/CIP)
on the date of this Agreement or issued or issuable directly or indirectly upon
the conversion of any such Class C
-9-
<PAGE>
Preferred Stock or Class D Preferred Stock, (ii) Common Stock issued or issuable
directly or indirectly upon the conversion of any Series C Preferred Stock or
Series D Preferred Stock described in clause (i) above or any Common Stock
described in this clause (ii), and (iii) Equity Securities issued or issuable
with respect to any Equity Securities referred to in clause (i) or clause (ii)
above or this clause (iii) by way of any stock dividend or stock split, or in
connection with a combination or exchange of shares, recapitalization, merger,
consolidation reorganization or otherwise. As to any particular securities
constituting Voting Trust Stock, such securities shall continue to constitute
Voting Trust Stock in the hands of any permitted transferee thereof, but will
cease to constitute Voting Trust Stock when they have been disposed of in a
Public Sale.
"VOTING TRUST UNDERLYING COMMON STOCK" means all Voting Trust Stock
which is Class A Common Stock. For purposes of this Agreement, any Person who
holds any Voting Trust Stock which is not Class A Common Stock will be deemed to
be the Holder of the Class A Common Stock obtainable upon the conversion,
exercise or exchange to the fullest extent possible of such Voting Trust Stock
(including the conversion, exercise or exchange of all other Voting Trust Stock
directly or indirectly obtainable upon any such conversion, exercise or
exchange), without regard to any restriction or limitation on any such
conversion, exercise or exchange.
"WILSON" has the meaning set forth in the preamble to this Agreement.
2. BOARD OF DIRECTORS.
2.1 BOARD COMPOSITION. From and after the date of this
Agreement and until the provisions of this Section 2 cease to be effective, each
Stockholder will vote all of such Stockholder's Stockholder Shares and any other
voting securities of the Company over which such Stockholder has voting control
and will take all other necessary or desirable actions within such Stockholders
control ((x) whether in such Stockholder's capacity as a voting trustee,
stockholder, director, member of a board committee or officer of the Company or
otherwise, and including attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings, and (y) but excluding conversion of shares or exercise of options or
warrants), and the Company will take all necessary and desirable actions within
its control (including calling special meetings of the Board or any Sub Board or
the stockholders of the Company or any Subsidiary), so that:
(a) at an annual meeting of the stockholders of the Company to be held
within 30 days after the date of this Agreement (or pursuant to written consent
in lieu of such a meeting), and from time to time thereafter, subject to Section
2.1(j), the authorized number of directors comprising the Board will be
established at five (5) directors;
(b) at an annual meeting of the stockholders of the Company to be
held within 30 days after the date of this Agreement (or pursuant to written
consent in lieu of such a meeting), and from time to time thereafter, the
following persons shall be elected to the Board:
-10-
<PAGE>
(i) one representative designated by the holders of a majority of
the Voting Trust Underlying Common Stock (the "Voting Trust Director"), who
at any time shall not be an Affiliate of ABRY or ABRY/CIP (and by his
execution and delivery of this Agreement, the Voting Trustee hereby
designates Patricia Diaz Dennis as the initial Voting Trust Director);
(ii) one representative designated by the holders of a majority
of the BFC Underlying Common Stock (the "BFC Director"), who initially
shall be Scott Smith;
(iii) one representative designated by LRW (the "Executive
Director"), who initially shall be LRW;
(iv) one representative designated by the holders of a majority
of the Endeavour Underlying Common Stock (the "Endeavour Director"), who
initially shall be John von Schlegell; and
(v) one representative designated by the holders of a majority of
the Snider Underlying Common Stock (the "Snider Director");
(c) the composition of the board of directors of each of the Company's
subsidiaries (a "Sub Board") will be the same as that of the Board (provided
that, in addition to the individuals who are then members of the Board, from
time to time as may be required by the articles or certificate of incorporation
of Citadel the members of the board of directors of Citadel will also include up
to two individuals elected by the holders of Exchangeable Preferred Stock as
provided in such articles or certificate of incorporation);
(d) any committees of the Board or a Sub Board will be created only
upon the approval of a majority of the members of the Board;
(e) the Company shall have a Compensation Committee and it will
consist of three Board members, comprised of (i) the Voting Trust Director, (ii)
the BFC Director, and (iii) the Endeavour Director;
(f) the removal from the Board or a Sub Board (with or without cause)
of any representative designated pursuant to Section 2.1(b)(i), 2.1(b)(ii),
2.1(b)(iii), 2.1(b)(iv) or 2.1(b)(v) will be at the written request of the
Person(s) entitled to designate directors under each such respective provision,
but only upon such written request and under no other circumstances;
(g) in the event that any representative designated pursuant to
Section 2.1(b)(i), 2.1(b)(ii), 2.1(b)(iii), 2.1(b)(iv), or 2.1(b)(v) for any
reason ceases to serve as a member of the Board or a Sub Board during his or her
term of office, the resulting vacancy on the Board or the
-11-
<PAGE>
Sub Board will be filled by a representative designated by the Person(s) and in
the manner described in such respective Section;
(h) for so long as LRW either is employed by the Company or holds not
fewer than 5% of the Stockholder Shares then outstanding, he shall have the
rights set forth in Section 2.1(b)(iii);
(i) the election of an individual to fill the directorship described
in Section 2.1(b)(iii) if LRW is not entitled to designate the individual to
fill such directorship by reason of Section 2.1(h) thereafter will be
accomplished in accordance with the Company's or the applicable Subsidiary's
bylaws and applicable law; and
(j) notwithstanding Section 2.1(a), by action of the majority of the
members of the Board, the number of members of the Board may be increased by up
to two (i.e., to seven (7)), and the election of individuals to occupy such
additional Board seat(s), and to remove or replace any individual so elected,
will be effected in accordance with the Company's certificate of incorporation
and by-laws and applicable law, each as in effect from time to time.
2.2 MEETINGS, EXPENSES. In addition to any director fee which
the Company (by action of the Board) may agree to pay to any particular
director, the Company will pay the reasonable out-of-pocket expenses incurred by
each director in connection with attending the meetings of the Board, any Sub
Board and any committee thereof. The Board and each Sub Board shall meet at
least four times a year and shall meet once within each 120-day period.
2.3 TERMINATION OF RIGHTS. The rights and obligations of a
Stockholder or group of Stockholders under this Section 2 will terminate upon
consummation of a Qualified Public Offering. In addition, the provisions of
this Section 2 shall terminate automatically and be of no further force and
effect upon the fifteenth anniversary of the date hereof, unless extended in
accordance with the General Corporation Law of the State of Nevada.
2.4 FAILURE TO DESIGNATE OR REPLACE. If any party fails to
timely designate or replace a representative to fill a directorship pursuant to
the terms of this Section 2, the election of an individual to such directorship
will be accomplished in accordance with the Company's or the applicable
Subsidiary's bylaws and applicable law.
2.5 EFFECT OF PUBLIC OFFERING. The provisions of this Agreement
shall cease and this Agreement shall terminate upon a Qualified Public Offering;
provided that no public offering shall be effected at any time when ABRY,
ABRY/CIP and their respective Affiliates, in the aggregate, beneficially own not
fewer than one-half of the Underlying Common Stock beneficially owned by them on
the date of this Agreement (making appropriate adjustments for
recapitalizations, stock splits, combinations, dividends and other matters
affecting the quantity and quality of the Equity Securities) unless there have
been taken actions which are satisfactory to the
-12-
<PAGE>
Company and ABRY which ensure that the Voting Trustee will be entitled to
designate one member of the Board for so long as ABRY, ABRY/CIP and their
respective Affiliates maintain such aggregate ownership. Such actions may
include, but are not limited to, the creation of a separate class or series of
voting securities of the Company and classification of the Board as contemplated
by the draft registration statement prepared by the Company dated September 24,
1997.
3. CONFLICTING AGREEMENTS. Each Stockholder represents that such
Stockholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with or conflicts with the provisions of
this Agreement, and no holder of Stockholder Shares will grant any proxy or
become party to any voting trust or other agreement which is inconsistent with
or conflicts with the provisions of this Agreement.
4. LEGEND. Each certificate for Stockholder Shares will be imprinted
with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF THE FOURTH AMENDED AND RESTATED VOTING
AGREEMENT DATED AS OF OCTOBER 15, 1997, AS AMENDED AMONG THE ISSUER OF
SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE
TRANSFER OF SUCH SECURITIES UNTIL SUCH TERMS AND CONDITIONS HAVE BEEN
FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH VOTING
AGREEMENT WILL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF
WITHOUT CHARGE UPON WRITTEN REQUEST.
The legend forth set forth above shall be removed from the certificates
evidencing shares which cease to be Stockholder Shares upon (a) the date on
which such Stockholder Share has been transferred in a Public Sale, (b) the
fifteenth anniversary of the date of this Agreement (unless extended in
accordance with the General Corporation Law of Nevada), or (c) the consummation
of a Qualified Public Offering.
5. TRANSFERS. Prior to Transferring any Stockholder Shares (other
than in a Public Sale), to any Person, the transferring Stockholder shall cause
the prospective transferee to execute and deliver to the Company and the other
Stockholders a counterpart of this Agreement. Any Transfer or attempted Transfer
of any Stockholder Shares in violation of any provision of this Agreement will
be void, and the Company will not record such Transfer on its books or treat any
purported transferee of such Stockholder Shares as the owner of such shares for
any purpose.
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<PAGE>
6. MISCELLANEOUS.
6.1 REMEDIES. Each holder of Stockholder Shares will have all
rights and remedies set forth in this Agreement, the Certificate of
Incorporation and all rights and remedies which such holders have been granted
at any time under any other agreement or contract and all of the rights which
such holders have under any law. Any Person having any rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, without posting a bond or other security, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any Stockholder may in his, her or its sole discretion apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief in order to enforce or prevent any violation of the
provisions of this Agreement.
6.2 CONSENT TO AMENDMENTS. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement will be
effective against the Company or any holder of Stockholder Shares unless such
modification, amendment or waiver is approved in writing by the Company, the
beneficial owners (meaning ABRY and ABRY/CIP, in the case of Voting Trust Stock
which is held in the Voting Trust) of a majority of the Voting Trust Underlying
Common Stock, the holders of a majority of the BFC Underlying Common Stock, the
holders of a majority of the Endeavour Underlying Common Stock, the holders of a
majority of the Urso Underlying Common Stock, the holders of a majority of the
Snider Underlying Common Stock, and LRW, respectively. The failure of any party
to enforce any of the provisions of this Agreement will in no way be construed
as a waiver of such provisions and will not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
6.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for any Stockholder's benefit as a
purchaser or holder of Stockholder Shares are also for the benefit of,
enforceable by, and binding upon, any subsequent holder of such Stockholder
Shares.
6.4 ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, including the Voting Agreement dated October 1, 1993,
the Amended and Restated Voting Agreement dated as of June 28, 1996, the Second
Amended and Restated Voting Agreement dated as of December 31,
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<PAGE>
1996, and the Voting Agreement (as defined herein), which may have related to
the subject matter hereof in any way.
6.5 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
6.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
Agreement.
6.7 DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
6.8 NOTICES. Notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when delivered personally to
the recipient, one business day after the date when sent to the recipient by
reputable express courier service (charges prepaid) or five business days after
the date when mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to the Stockholders and to the Company at the
addresses indicated below:
If to the Company:
Citadel Communications Corporation
140 South Ash Avenue
Tempe, Arizona 85281
Attention: Donna Hefner
and
---
Lawrence R. Wilson
1015 Eastman Drive
Bigfork, Montana 59911
With a copy (which will not constitute notice) to:
Eckert Seamans Cherin & Mellott, LLC
600 Grant Street
42nd Floor
-15-
<PAGE>
Pittsburgh, PA 15219-2788
Attention: Bryan D. Rosenberger, Esq.
If to the Voting Trustee:
Harlan Levy
444 East 86th Street
New York, New York 10028
With a copy (which shall not constitute notice) to:
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022-4675
Attention: John L. Kuehn, Esq.
If to any other Stockholder:
To the respective address set forth on Schedule A to the
Stockholders Agreement, as amended from time to time,
including copies as indicated in Schedule A to the
Stockholders Agreement
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
6.9 NO OTHER THIRD-PARTY BENEFICIARIES. This Agreement will not
confer any rights or remedies upon any Person other than the Company, the
Stockholders, ABRY, ABRY/CIP and their respective successors and permitted
assigns.
6.10 CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party. Any
reference to any federal, state, local, or foreign statute or law will be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. The use of the word "including" in this Agreement is
intended by the parties to be by way of example rather than limitation.
6.11 GOVERNING LAW. THE GENERAL CORPORATION LAW OF THE STATE OF
NEVADA WILL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND
ITS STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF
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<PAGE>
THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL LAW, AND NOT THE LAW OF
CONFLICTS, OF THE STATE OF NEVADA.
6.12 SUBMISSION TO JURISDICTION. Each of the parties to this
Agreement submits to the jurisdiction of any state or federal court sitting in
Boston, Massachusetts, Chicago, Illinois, Nevada or Arizona in any action or
proceeding arising out of or relating to this Agreement, agrees that all claims
in respect of the action or proceeding may be heard and determined in any such
court, and agrees not to bring any action or proceeding arising out of or
relating to this Agreement in any other court. Each of the parties to this
Agreement waives any defense of inconvenient forum to be maintenance of any
action or proceeding so brought and waives any bond, surety, or other security
that might be required of any other party with respect thereto. Each party to
this Agreement appoints CT Corporation System (the "Process Agent"), with
addresses of 208 South LaSalle Street, Chicago, Illinois 60604, One East First
Street, Reno, Nevada, Suite 1601, 3225 North Central Avenue, Phoenix, Arizona
85012, and 2 Oliver Street, Boston, Massachusetts 02109, as its agent to receive
on its behalf service of copies of the summons and complaint and any other
process that might be served in the action or proceeding. Any party to this
Agreement may make service on any other party by sending or delivering a copy of
the process (a) to the party to be served at the address and in the manner
provided for the giving of notices in Section 6.8 or (b) to the party to be
served in care of the Process Agent at the address and in the manner provided
for the giving of notices in Section 6.8. Nothing in this Section 6.12, however,
will affect the right of any party to serve legal process in any other manner
permitted by law. Each party agrees that a final judgment in any action or
proceeding so brought will be conclusive and may be enforced by suit on the
judgment or in any other manner provided by law.
6.13 FCC MATTERS. Notwithstanding any provision contained herein
to the contrary, no party hereto may exercise any of its rights or remedies
hereunder, or take any actions permitted hereby, if prior thereto the Company
receives a written opinion from its nationally recognized FCC counsel that after
consultation with the staff of the Federal Communications Commission ("FCC")
such exercise or action will violate the Communication Act of 1934 or the rules,
regulations, or policies promulgated thereunder.
6.14 INCORPORATION OF RECITALS. The Recitals set forth in this
Agreement are incorporated herein.
IN WITNESS WHEREOF, the undersigned have caused this Fourth Amended
and Restated Voting Agreement to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
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<PAGE>
[SIGNATURE PAGE FOR FOURTH AMENDED]
AND RESTATED VOTING AGREEMENT]
CITADEL COMMUNICATIONS CORPORATION
By /s/ Lawrence R. Wilson
-------------------------------------------
Its President
-----------------------------------------
/s/ Lawrence R. Wilson
----------------------------------------------
Lawrence R. Wilson
/s/ Claire Wilson
----------------------------------------------
Claire Wilson
/s/ Harlan Levy
----------------------------------------------
Harlan Levy, as Trustee pursuant to the Voting
Trust Agreement referred to above
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<PAGE>
[SIGNATURE PAGE FOR FOURTH AMENDED]
AND RESTATED VOTING AGREEMENT]
BAKER, FENTRESS & COMPANY
By /s/ Scott E. Smith
-------------------------------------------
Its Executive Vice President
-----------------------------------------
OPPENHEIMER & CO., INC.
By /s/ Matthew J. Maryles
-------------------------------------------
Its Managing Director
-----------------------------------------
FINOVA CAPITAL CORPORATION
By /s/ Andrew J. Pluta
-------------------------------------------
Its Assistant Vice President
-----------------------------------------
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<PAGE>
[SIGNATURE PAGE FOR FOURTH AMENDED]
AND RESTATED VOTING AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED PARTNERSHIP
By DVS Management, Inc.
Its General Partner
By /s/ John von Schlegell
-------------------------------------
Its President
----------------------------------
ENDEAVOUR CO-INVESTORS:
*
---------------------------------------------
Joseph P. Tennant
THE SCHAFBUCH FAMILY TRUST u/a/d 2-15-94
By: *
-----------------------------------------
Richard M. Schafbuch, Trustee
By: *
-----------------------------------------
Susan P. Schafbuch, Trustee
BABSON CAPITAL PARTNERS LIMITED PARTNERSHIP
By: *
-----------------------------------------
*
---------------------------------------------
Tal Johnson
*
---------------------------------------------
Edward T. Hardy
*
---------------------------------------------
Ralph W. McKee
* By: /s/ John von Schlegell
---------------------------------------
Name: John von Schlegell
---------------------------------------
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<PAGE>
Attorney-in-Fact
[SIGNATURE PAGE FOR FOURTH AMENDED
AND RESTATED VOTING AGREEMENT]
URSO:
/s/ Philip J. Urso
-------------------------------------------
Philip J. Urso
URSO CO-INVESTORS:
*
-------------------------------------------
Phillip Norton
*
-------------------------------------------
Richard Poholek
*
-------------------------------------------
Karen Kutniewski
*
-------------------------------------------
Pat Bowen
*
-------------------------------------------
Tom Jenkins
*
-------------------------------------------
Juliet Rice
*
-------------------------------------------
Jeff Thompson
*
-------------------------------------------
M. Linda Urso
*
-------------------------------------------
Mark Urso
* By: /s/ Philip J. Urso
-------------------------------------
Name: Philip J. Urso
-------------------------------------
Attorney-in-Fact
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<PAGE>
[SIGNATURE PAGE FOR FOURTH AMENDED]
AND RESTATED VOTING AGREEMENT]
SNIDER INVESTORS:
/s/ Ted L. Snider, Sr.
--------------------------------------
Ted L. Snider, Sr.
/s/ Jane J. Snider
--------------------------------------
Jane J. Snider
/s/ Ted L. Snider, Jr.
--------------------------------------
Ted L. Snider, Jr.
/s/ Calvin Arnold
--------------------------------------
Calvin Arnold
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<PAGE>
Exhibit 2
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
--------------------------------------------------------
This THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made as of June 28, 1996, by and among Citadel Communications
Corporation, a Nevada corporation (the "Company"), the investors whose names are
listed on the Investor Signature Pages attached hereto (herein referred to
collectively as the "Investors" and individually as an "Investor") and, with
respect to Section 4(a) hereof, Lawrence R. Wilson and Claire Wilson
(collectively, "Wilson").
RECITALS:
WHEREAS, the Company granted registration rights to certain of the
Investors pursuant to the Second Amended and Restated Registration Rights
Agreement dated October 1, 1993 (the "Previous Agreement"); and
WHEREAS, the Company, as issuer, and ABRY, ABRY/CIP, BofA, the BofA Co-
Investors, BFC, OPCO and certain other parties are entering into the Securities
Purchase and Exchange Agreement pursuant to which the Company will repurchase
certain Equity Securities of the Company held by BofA, BFC and the BofA Co-
Investors, and BofA, BFC, OPCO and the BofA Co-Investors will exchange through
reclassification certain Equity Securities of the Company for other Equity
Securities of the Company and ABRY and ABRY/CIP will purchase certain Equity
Securities of the Company; and
WHEREAS, in order to induce BofA, BFC, OPCO and the BofA Co-Investors to
enter into the Securities Purchase and Exchange Agreement and to effect such
sale of Equity Securities and exchanges and to induce ABRY and ABRY/CIP to enter
into the Securities Purchase and Exchange Agreement and to purchase such Equity
Securities of the Company, the Company wishes to grant certain registration
rights to ABRY and ABRY/CIP and amend and restate the terms of the Previous
Agreement; and
WHEREAS, the execution of this Agreement is a condition to the closing of
the transactions contemplated by the Securities Purchase and Exchange Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree that the
Previous Agreement is hereby amended and restated in its entirety as follows:
1. Definitions
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As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ABRY/CIP" shall mean ABRY/Citadel Investment Partners, L.P., a
Delaware limited partnership.
"Additional Preferred Stock" shall mean any additional series of
preferred stock issued by the Company other than the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock.
"BFC" shall mean Baker, Fentress & Company, a Delaware corporation.
"BofA" shall mean Bank of America Illinois, an Illinois banking
corporation.
"BofA Co-Investors" shall mean and refer, individually and
collectively, to those individuals who are designated on the Investor Signature
Pages as the "BofA Co-Investors."
"BofA Warrants" shall mean those warrants issued by the Company
pursuant to the Senior Subordinated Note and Purchase Agreement, dated as of
October 1st, 1993, by and among the Company, Citadel, BofA (f/k/a Continental
Bank N.A.) and certain other parties thereto.
"Citadel" shall mean Citadel Broadcasting Company, a Nevada
corporation and wholly owned Subsidiary of the Company.
"Claim" shall mean any loss, claim, damages, liability or expense
(including the reasonable costs of investigation and legal fees and expenses).
"Class A Common Stock" shall mean the Class A Common Stock, par value
$.001 per share, of the Company.
"Class B Common Stock" shall mean the Class B Common Stock, par value
$.001 per share, of the Company.
"Class C Common Stock" shall mean the Class C Common Stock, par value
$.001 per share, of the Company.
"Commission" shall mean the Securities and Exchange Commission,
including any governmental body or agency succeeding to the functions thereof.
"Common Stock" shall mean, collectively, the Class A Common Stock,
Class B Common Stock and Class C Common Stock.
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"Conversion Stock" means all Investor Stock which is Common Stock. For
purposes of this Agreement, any Person who holds any Investor Stock which is not
Common Stock will be deemed to be the Holder of the Common Stock obtainable upon
the conversion, exercise or exchange to the fullest extent possible of such
Investor Stock (including the conversion, exercise or exchange of all other
Investor Stock directly or indirectly obtainable upon any such conversion,
exercise or exchange), without regard to any restriction or limitation on any
such conversion, exercise or exchange; provided that no Holder of any Facility A
Note (as that term is defined in the Securities Purchase and Exchange
Agreement), on or prior to the Maturity Date (as that term is defined in such
Facility A Note) of such Facility A Note, shall be deemed to be the Holder of
any such Common Stock by reason of holding such Facility A Note.
"Demand Registration" shall mean a registration pursuant to Section 2
hereof.
"Equity Securities" of any Person means (i) any capital stock,
partnership, membership, joint venture or other ownership or equity interest,
participation or securities (whether voting or non-voting, whether preferred,
common or otherwise, and including any stock appreciation, contingent interest
or similar right) and (ii) any option, warrant, security or other right
(including debt securities) directly or indirectly convertible into or
exercisable or exchangeable for, or otherwise to acquire directly or indirectly,
any stock, interest, participation or security described in clause (i) above.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
"Firm Commitment Underwritten Offering" shall mean an offering in
which the underwriters agree to purchase securities for distribution pursuant to
a registration statement under the Securities Act and in which the obligation of
the underwriters is to purchase all the securities being offered if any are
purchased.
"Holder" shall mean the beneficial owner of a security. For all
purposes of this Agreement, the Company shall be entitled to treat the record
owner of a security as the beneficial owner of such security unless it has been
given written notice of the existence and identity of a different beneficial
owner.
"Indemnified Holders" shall mean any Holder of Restricted Stock, any
officer, director, employee or agent of any such Holder and any Person who
controls any such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act.
"Investor Stock" has the meaning set forth in the Securities Purchase
and Exchange Agreement.
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"Misstatement" shall mean an untrue statement of a material fact or an
omission to state a material fact required to be stated in a Registration
Statement or Prospectus or necessary to make the statements in a Registration
Statement, Prospectus or preliminary prospectus not misleading.
"OPCO" shall mean Oppenheimer & Co., Inc., a Delaware corporation.
"Person" shall mean all natural persons, corporations, business
trusts, limited liability companies, associations, companies, partnerships,
joint ventures, governments, agencies, political subdivisions and other
entities.
"Piggyback Registration" shall mean a registration pursuant to Section
3 hereof.
"Preferred Stock" shall mean the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Additional Preferred Stock, collectively.
"Previous Investors" shall mean BofA, the BofA Co-Investors, BFC and
OPCO.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated
by reference in such prospectus.
"Qualified Public Offering" means the closing of the issuance and sale
of Common Stock in an underwritten public offering which is registered pursuant
to the Securities Act and which results in the receipt by the Company of cash
proceeds of at least $25,000,000 (net of applicable commissions, discounts and
expenses).
"Registration" shall mean a Demand Registration or a Piggyback
Registration.
"Registration Expenses" shall mean the out-of-pocket expenses of a
Registration, including:
(a) all registration and filing fees (including fees with respect to
filing required to be made with the National Association of Securities Dealers);
(b) fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters or selling
Holders in connection with blue sky qualifications of the Restricted Stock and
determinations of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders of a majority of the
Restricted Stock being sold may designate);
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(c) printing, messenger, telephone and delivery expenses;
(d) fees and disbursements of counsel for the Company, counsel for the
underwriters and of not more than one firm of attorneys for the sellers of the
Restricted Stock selected by the Holders which own a majority of the Restricted
Stock which is requested to be included in such Registration;
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<PAGE>
(e) fees and disbursements of all independent certified public
accountants of the Company incurred in connection with such Registration
(including the expenses of any special audit and "cold comfort" letters incident
to such registration); and
(f) fees and disbursements of underwriters (excluding discounts,
commissions or fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the Restricted
Stock).
"Registration Statement" shall mean any registration statement which
covers Restricted Stock pursuant to the provisions of this Agreement, including
the Prospectus included in such registration statement, amendments (including
post-effective amendments) and supplements to such registration statement, and
all exhibits to and all material incorporated by reference in such registration
statement.
"Restricted Stock" shall mean (i) all shares of Common Stock owned now
or in the future by the Investors, (ii) the Conversion Stock, whether owned by
the Investors or not, and (iii) any securities issued or issuable with respect
to such securities by way of any stock dividend or stock split, or in connection
with a combination or exchange of shares, recapitalization, merger,
consolidation, reorganization or otherwise; provided that any such share or
other security shall be deemed to be Restricted Stock only if and so long as it
is a Transfer Restricted Security.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal law then in force.
"Securities Purchase and Exchange Agreement" shall mean the Securities
Purchase Agreement dated as of the date hereof by and among the Company, Citadel
and the Investors, as in effect from time to time.
"Series A Preferred Stock" shall mean the Series A Convertible
Preferred Stock, par value $.001 per share, of the Company.
"Series B Preferred Stock" shall mean the Series B Convertible
Preferred Stock, par value $.001 per share, of the Company.
"Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock, par value $.001 per share, of the Company.
"Series D Preferred Stock" shall mean the Series D Convertible
Preferred Stock, par value $.001 per share, of the Company.
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<PAGE>
"Stockholders Agreement" shall mean the Second Amended and Restated
Stockholders Agreement of even date herewith by and among the Company and the
Investors, as in effect from time to time.
"Transfer Restricted Security" shall mean a security that has not been
sold to or through a broker, dealer or underwriter in a public distribution or
other public securities transaction or sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Rule 144 promulgated thereunder (or any successor rule). The foregoing
notwithstanding, a security shall remain a Transfer Restricted Security until
(i) all stop transfer instructions or notations and restrictive legends with
respect to such security have been lifted or removed, (ii) the Holder of such
security has received at the expense of the Company an opinion of counsel to the
Company (which counsel and opinion are reasonably satisfactory to such Holder),
to the effect that such shares in such Holder's hands are freely transferable in
any public or private transaction without registration under the Securities Act
(or such Holder has waived receipt of such opinion) and (iii) a Qualified Public
Offering has occurred.
2. Demand Registrations
(a) In-General
At any time on or after the earlier of (i) the consummation of the
initial public offering of the Company's Common Stock which is registered
pursuant to the Securities Act (other than on Form S-8) or (ii) August 1, 2000,
the Holders of a majority of the shares of Conversion Stock constituting
Restricted Stock then outstanding may request that the Company file a
Registration Statement under the Securities Act covering the shares of
Restricted Stock that are the subject of such request. Any such request will be
accompanied by a statement of the range of proposed offering prices for the
offering of such Restricted Stock.
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<PAGE>
(b) Number of Demand Registrations
The Company shall be obligated to prepare, file and cause to become
effective, pursuant to this Section 2, one Registration Statement in connection
with which the Company will bear all Registration Expenses. If (i) the Company
withdraws a Registration Statement filed pursuant to a Demand Registration prior
to the effectiveness thereof, (ii) the sale of securities to which a
Registration Statement filed pursuant to a Demand Registration applies is not
consummated because of the failure of the Company to comply with the provisions
of Section 5 hereof, or (iii) upon the consummation of a sale of securities to
which a Registration Statement filed pursuant to a Demand Registration applies,
less than 80% of the securities requested to be registered for sale thereunder
is sold, such Registration Statement shall not be counted as the one Demand
Registration in connection with which the Company will bear all Registration
Expenses or otherwise adversely affect such Holder's rights hereunder.
(c) Required Thresholds
The Company shall not be obligated to prepare, file and cause to
become effective pursuant to this Section 2 a Registration Statement unless the
proposed aggregate number of shares of Conversion Stock to be included in such
Demand Registration equals the greater of (i) at least 25% of the outstanding
shares of Conversion Stock and (ii) such number of shares, the sale of which
would result in aggregate net proceeds in excess of $3,000,000, based on the
mid-point of the range of offering prices proposed by the Holders making the
request pursuant to Section 2(a).
(d) Participation
The Company shall promptly give written notice to all Holders of
Restricted Stock upon receipt of a request for a Demand Registration pursuant to
Section 2(a) above. The Company shall include in such Demand Registration such
shares of Restricted Stock for which it has received written requests to
register such shares within 30 days after such written notice has been given.
(e) Underwriter's Cutback
If the public offering of Restricted Stock is to be underwritten and,
in the good faith judgment of the managing underwriter, the inclusion of all the
Restricted Stock requested to be registered hereunder would interfere with the
successful marketing of a smaller number of such shares of Restricted Stock, the
number of shares of Restricted Stock to be included shall be reduced to such
smaller number with the participation in such offering to be pro rata among the
Holders of Restricted Stock requesting such registration, based upon the number
of shares of Restricted Stock owned by such Holders.
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<PAGE>
Any shares that are thereby excluded from the offering shall be
withheld from the market by the Holders thereof for a period (not to begin more
than 30 days prior to the proposed effective date nor continue for more than 90
days thereafter) that the managing underwriter reasonably determines is
necessary in order to effect the underwritten pubic offering.
The Company and, subject to the requirements of Section 11 hereof,
other Holders of applicable securities of the Company may include such
securities in such Registration if, but only if, the managing underwriter
concludes that such inclusion will not interfere with the successful marketing
of all the Restricted Stock requested to be included in such registration.
(f) Managing Underwriter
The managing underwriter or underwriters of any underwritten public
offering covered by a Demand Registration shall be selected by the Holders of a
majority of the shares of Restricted Stock that initiate such registration,
subject to the approval of the Board of Directors, which shall not be
unreasonably withheld.
3. Piggyback Registrations
(a) Participation
Each time the Company decides to file a registration statement under
the Securities Act (other than on Forms S-4 or S-8 or pursuant to Section 2
hereof) covering the offer and sale by the Company or any of its respective
security holders of any of its securities for money, the Company shall give
written notice thereof to all Holders of Restricted Stock. The Company shall
include in such registration statement such shares of Restricted Stock for which
it has received written requests to register such shares within 30 days after
such written notice has been given. If the registration statement is to cover an
underwritten offering, such Restricted Stock shall be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters.
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<PAGE>
(b) Underwriter's Cutback
Subject to the requirements of Section 11 hereof, if in the good faith
judgment of the managing underwriter of such offering the inclusion of all of
the shares of Restricted Stock and any other securities requested to be
registered would interfere with the successful marketing of a smaller number of
such shares, then the number of shares of Restricted Stock and other securities
to be included in the offering (except for securities to be issued by the
Company in an offering initiated by the Company) shall be reduced to such
smaller number with the participation in such offering to be in the following
order of priority: (1) first Restricted Stock requested to be included, and (2)
second, any other securities requested to be included. Any necessary allocation
among the Holders of shares within each of the foregoing groups shall be pro
rata among such Holders requesting such registration based upon the number of
shares of Restricted Stock or other securities, as applicable, owned by such
Holders. All shares so excluded from the underwritten public offering shall be
withheld from the market by the Holders thereof for a period (not to begin more
than 30 days prior to the proposed effective date nor continue for more than 90
days thereafter) that the managing underwriter reasonably determines is
necessary in order to effect the underwritten public offering.
(c) Registrant Controls
The Company may decline to file a Registration Statement described in
Section 3(a) above after giving notice to any Holder or withdraw any such
Registration Statement after filing and after such notice, but prior to the
effectiveness thereof, provided that such registrant shall promptly notify each
Holder in writing of any such action and provided further that such registrant
shall bear all reasonable expenses incurred by such Holder or otherwise in
connection with such withdrawn Registration Statement.
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4. Hold-Back Agreements
--------------------
(a) By Holders of Restricted Stock; Wilson
--------------------------------------
Upon the written request of the managing underwriter of any
underwritten offering of the Company's securities, neither Wilson nor a Holder
of Restricted Stock shall sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any Restricted Stock (other than
those included in such registration) without the prior written consent of such
managing underwriter for a period (not to begin more than 30 days before the
proposed effective date nor continue for more than 90 days thereafter) that such
managing underwriter reasonably determines is necessary in order to effect the
underwritten public offering. In addition, the Company will use its best efforts
to cause each of the officers and directors of the registrant to enter into
substantially similar holdback agreements with such managing underwriter
covering at least the same period. Lawrence R. Wilson does hereby agree, by his
execution hereof, to enter into substantially similar holdback agreements with
such managing underwriter covering at least the same period.
(b) By the Company and Others
-------------------------
The Company agrees:
(1) not to effect any public or private sale or distribution of
its Equity Securities during the 30-day period prior to, and during the 90-day
period after, the effective date of each underwritten offering made pursuant to
a Demand Registration or a Piggyback Registration, if so requested in writing by
the managing underwriter (except as part of such underwritten offering or
pursuant to registrations on Form S-4 or S-8), and
(2) not to issue any Equity Securities other than for sale in a
registered public offering unless each of the Persons to which such securities
are issued has entered a written agreement binding on its transferees not to
effect any public sale or distribution of such securities during such period,
including without limitation a sale pursuant to Rule 144 under the Securities
Act (except as part of such underwritten registration, if and to the extent
permitted hereunder).
5. Registration Procedures
-----------------------
If and whenever the Company is required to register Restricted Stock
in a Demand Registration or a Piggyback Registration, the Company will use its
best efforts to effect such registration to permit the sale of such Restricted
Stock in accordance with the intended plan of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible:
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(a) prepare and file with the Commission as soon as practicable a
Registration Statement with respect to such Restricted Stock and use its best
efforts to cause such Registration Statement to become effective and remain
effective until the Restricted Stock covered by such Registration Statement has
been sold; provided that the registrant shall not be required to maintain the
effectiveness of any Registration Statement not covering an underwritten public
offering for more than 90 days after such registration statement becomes
effective; and further provided that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, the registrant shall
furnish to the Holders of the Restricted Stock covered by such Registration
Statement and the underwriters, if any, draft copies of all such documents
proposed to be filed, which documents will be subject to the review of such
Holders and underwriters, and the registrant shall not file any Registration
Statement of amendment thereto or any Prospectus or any supplement thereto to
which the Holders of a majority of the Restricted Stock covered by such
Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement, and such supplements to the
Prospectus, as may be requested by any Holder of Restricted Stock or any
underwriter of Restricted Stock or as may be required by the rules, regulations
or instructions applicable to the registration form used by the registrant or by
the Securities Act or rules and regulations thereunder to keep the Registration
Statement effective until all shares of Restricted Stock covered by such
Registration Statement are sold in accordance with the intended plan of
distribution set forth in such Registration Statement or supplement to the
Prospectus or for such shorter period of time during which such Registration
Statement must be kept effective by the terms of this Agreement;
(c) promptly notify the applicable selling Holders of Restricted Stock
and the managing underwriter, if any, and (if requested by any such Person)
confirm such advice in writing:
(1) when the Prospectus or any supplement or post-effective amendment
has been filed, and, with respect to the Registration Statement or any post-
effective amendment, when the same has become effective,
(2) of any request by the Commission for amendments or supplements to
the Registration Statement, the Prospectus or for additional information,
(3) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose,
(4) if at any time the representations and warranties of the Company
contemplated by clause (1) of paragraph (o) below cease to be accurate in all
material respects,
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(5) of the receipt by the registrant of any notification with respect
to the suspension of the qualification of the Restricted Stock for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and
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(6) of the existence of any fact which results in the Registration
Statement, the Prospectus or any document incorporated therein by reference
containing a Misstatement;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible time;
(e) if requested by the managing underwriter or a Holder of Restricted
Stock being sold in connection with an underwritten offering, immediately
incorporate in a supplement or post-effective amendment such information as the
managing underwriter and the Holders of a majority of the shares of Restricted
Stock being sold agree should be included therein relating to the sale of the
Restricted Stock, including, without limitation, information with respect to the
number of shares of Restricted Stock being sold to underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the underwritten offering of the Restricted Stock to be sold in such
offering; and make all required filings of such supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
supplement or post-effective amendment;
(f) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement) provide copies of such
document to counsel to the selling Holders of Restricted Stock and to the
managing underwriter, if any, and make the registrant's representatives
available for discussion of such document and make such changes in such document
prior to the filing thereof as counsel for such selling Holders or underwriters
may be reasonably request;
(g) furnish to each selling Holder of Restricted Stock and the
managing underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(h) deliver to each selling Holder of Restricted Stock and the
underwriters, if any, without charge, as many copies of each Prospectus (and
each preliminary prospectus) as such Persons may reasonably request (the Company
hereby consenting to the use of each such Prospectus (or preliminary prospectus)
by each of the selling Holders of Restricted Stock and the underwriters, if any,
in connection with the offering and sale of the Restricted Stock covered by such
Prospectus (or preliminary prospectus));
(i) prior to any public offering of Restricted Stock, register or
qualify or cooperate with the selling Holders of Restricted Stock, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification of such Restricted Stock for
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offer and sale under the securities or blue sky laws of such jurisdictions as
such selling Holders or underwriters may designate in writing and do anything
else reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Restricted Stock covered by the Registration Statement;
provided that the registrant shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(j) cooperate with the selling Holders of Restricted Stock and the
managing underwriter, if any, to facilitate the timely preparation and delivery
of certificates not bearing any restrictive legends representing the Restricted
Stock to be sold and cause such Restricted Stock to be in such denominations and
registered in such names as the managing underwriter may request at least three
business days prior to any sale of Restricted Stock to the underwriters;
(k) use its best efforts to cause the Restricted Stock covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of
such Restricted Stock;
(l) if the Registration Statement or the Prospectus contains a
Misstatement, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Restricted Stock, the Prospectus will not
contain a Misstatement;
(m) use its best efforts to cause all Restricted Stock covered by the
Registration Statement to be listed on any national securities exchange or
authorized for quotation on the Nasdaq National Market System, if requested by
the Holders of a majority of such Restricted Stock or the managing underwriter,
if any;
(n) provide a CUSIP number for all Restricted Stock not later than the
effective date of the Registration Statement;
(o) enter into such agreements (including an underwriting agreement)
and do anything else reasonably necessary or advisable in order to expedite or
facilitate the disposition of such Restricted Stock, and in such connection,
whether or not the registration is an underwritten registration:
(1) make such representations and warranties to the Holders of
such Restricted Stock and the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in primary underwritten
offerings;
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<PAGE>
(2) obtain opinions of counsel to the registrant and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriter, if any, and the Holders of
a majority of the Restricted Stock being sold) addressed to each selling Holder
and the underwriter, if any, covering the matters customarily covered in
opinions delivered to underwriters in primary underwritten offerings and such
other matters as may be reasonably requested by such Holders or underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
registrant's independent certified public accountants addressed to the selling
Holders of Restricted Stock and the underwriters, if any, such letter to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with primary underwritten
offerings;
(4) if an underwriting agreement is entered into, cause the same
to include the indemnification and contribution provisions and procedures of
Section 7 hereof with respect to all parties to be indemnified pursuant to said
Section (or, with respect to the indemnification of such underwriters, such
similar indemnification and contribution provisions as such underwriters shall
customarily require); and
(5) deliver such documents and certificates as may be requested
by the Holders of a majority of the Restricted Stock being sold and the managing
underwriter, if any, to evidence compliance with clause (i) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the registrant.
The above shall be done at each closing under such underwriting
or similar agreement or as and to the extent otherwise reasonably requested by
the Holders of a majority of the Restricted Stock being sold;
(p) make available for inspection by representatives of the Holders of
a majority of the Restricted Stock being sold, any underwriter participating in
any disposition pursuant to such Registration Statement, and any attorney or
accountant retained by the sellers or any such underwriter, all financial and
other records and pertinent corporate documents and properties of the
registrant, and cause the registrant's officers, directors and employees to
supply all information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with the Registration;
provided that any records, information or documents that are designated by the
registrant in writing as confidential shall be kept confidential by such Persons
unless disclosure of such records, information or documents is required by court
or administrative order;
(q) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security
holders earning statements satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days
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after the end of any 12-month period (or 90 days, if such period is a fiscal
year) (x) commencing at the end of any fiscal quarter in which Restricted Stock
are sold to underwriters in an underwritten offering, or, if not sold to
underwriters in such an offering, (y) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said 12-month periods; and
(r) use its best efforts to cause the Company's management to
participate fully in the sale process, including, without limitation, the
preparation of the Registration Statement and the preparation and presentation
of any "road shows," whether domestic or international, and for so long as
Wilson is employed by the Company he agrees to participate fully in the sale
process, including without limitation, the preparation of the Registration
Statement and the preparation and presentation of any such road shows.
6. Registration Expenses
---------------------
(a) Demand Registrations
--------------------
The Company shall bear all Registration Expenses incurred in
connection with one Demand Registration requested by the Holders of Conversion
Stock.
(b) Piggyback Registrations
-----------------------
The Company shall bear all Registration Expenses incurred in
connection with Piggyback Registrations.
(c) Expenses of Registrants
-----------------------
The Company will, in any event, pay its respective internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with any listing of the
securities to be registered on a securities exchange, and the fees and expenses
of any Person, including special experts, retained by the Company.
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7. Indemnification
----------------
(a) Indemnification by the Company
-------------------------------
The Company (the "Indemnifying Party") agrees to indemnify and hold
harmless each Indemnified Holder from and against all Claims arising out of or
based upon any Misstatement or alleged Misstatement, except insofar as such
Misstatement or alleged Misstatement was based upon information furnished in
writing to the registrant by such Indemnified Holder expressly for use in the
document containing such Misstatement or alleged Misstatement. This indemnity
shall not be exclusive and shall be in addition to any liability which the
Company may otherwise have.
The foregoing notwithstanding, the Indemnifying Party shall not be
liable to the extent that any such Claim arises out of or is based upon a
Misstatement or alleged Misstatement made in any preliminary prospectus if (i)
such Indemnified Holder failed to send or deliver a copy of the Prospectus with
or prior to the delivery of written confirmation of the sale of
-18-
<PAGE>
Restricted Stock giving rise to such Claim and (ii) the Prospectus would have
corrected such untrue statement or omission.
In addition, the Indemnifying Party shall not be liable to the extent
that any such Claim arises out of or is based upon a Misstatement or alleged
Misstatement in a Prospectus, (x) if such Misstatement or alleged Misstatement
is corrected in an amendment or supplement to such Prospectus and (y) having
previously been furnished by or on behalf of the Indemnifying Party with copies
of the Prospectus as so amended or supplemented, such Indemnified Holder
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale to the person who purchased the Restricted
Stock from such Indemnified Holder and who is asserting such Claim.
The Indemnifying Party shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in a distribution covered by a Registration Statement, their
officers and directors and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to the indemnification of the
Indemnified Holders of Restricted Stock.
(b) Indemnification Procedures
--------------------------
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against an Indemnified Holder in
respect of which indemnity may be sought from the Indemnifying Party, such
Indemnified Holder shall promptly notify the Indemnifying Party in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel satisfactory to such Indemnified Holder and the payment of
all expenses.
Such Indemnified Holder shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such separate counsel shall be the expense of such
Indemnified Holder unless (i) the Indemnifying Party has agreed to pay such fees
and expenses, (ii) the Indemnifying Party shall have failed to assume the
defense of such action or proceeding or has failed to employ counsel
satisfactory to such Indemnified Holder in any such action or proceeding or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Holder and the Indemnifying
Party, and such Indemnified Holder shall have been advised by counsel that there
may be one or more legal defenses available to such Indemnified Holder that are
different from or additional to those available to the Indemnifying Party.
If such Indemnified Holder notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party as permitted by the provisions of the preceding paragraph, the
Indemnifying Party shall not have the right to assume
-19-
<PAGE>
the defense of such action or proceeding on behalf of such Indemnified Holder.
The foregoing notwithstanding, the Indemnifying Party shall not be liable for
the reasonable fees and expenses of more than one separate firm of attorneys at
any time for such Indemnified Holder and any other Indemnified Holders (which
firm shall be designated in writing by such Indemnified Holders) in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances.
The Indemnifying Party shall not be liable for any settlement of any
such action or proceeding effected without its written consent, but if settled
with its written consent, or if there be a final judgment for the plaintiff in
any such action or proceeding, the Indemnifying Party agrees to indemnify and
hold harmless such Indemnified Holders from and against any loss or liability by
reason of such settlement or judgment.
(c) Indemnification by Holder of Restricted Stock
---------------------------------------------
Each Holder of Restricted Stock agrees to indemnify and hold harmless
the Company, their respective directors and officers and each Person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Indemnified Party to such Holder, but only with
respect to information relating to such Holder furnished in writing by such
Holder expressly for use in any Registration Statement, Prospectus or
preliminary prospectus. In no event, however, shall the liability hereunder of
any selling Holder of Restricted Stock be greater than the dollar amount of the
proceeds received (net of underwriting commissions and discounts) by such Holder
upon the sale of the Restricted Stock giving rise to such indemnification
obligation.
In case any action or proceeding shall be brought against the Company
or its directors or officers or any such controlling person, in respect of which
indemnity may be sought against a Holder of Restricted Stock, such Holder shall
have the rights and duties given the Company or its directors of officers and
such controlling person shall have the rights and duties given to each Holder by
Section 7(a) and 7(b) above.
The Company shall be entitled to received indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement.
-20-
<PAGE>
(d) Contribution
------------
If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under Section 7(a) or Section 7(c) above (other than by
reason of exceptions provided in those Sections) in respect of any Claims
referred to in such Sections, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Claims in such proportion
as is appropriate to reflect the relative fault of the Company on the one hand
and of the Indemnified Holder on the other in connection with the statements or
omissions which resulted in such Claims as well as any other relevant equitable
considerations. The amount paid or payable by a party as a result of the Claims
referred to above shall be deemed to include, subject to the limitations set
forth in Section 7(b), any legal or other fees or expenses reasonably incurred
by such party in connection investigating or defending any action or claim.
The relative fault of the Company on the one hand and of the
Indemnified Holder on the other shall be determined by reference to, among other
things, whether the Misstatement or alleged Misstatement related to information
supplied by the Company or by the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Misstatement or alleged Misstatement.
The Company and each Holder of Restricted Stock agree that it would
not be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7(d), an Indemnified
Holder shall not be required to contribute any amount in excess of the amount by
which (i) the total price (net of underwriting commissions and discounts) at
which the securities that were sold by such Indemnified Holder and distributed
to the public were offered to the public exceeds (ii) the amount of any damages
which such Indemnified Holder has otherwise been required to pay by reason of
such Misstatement.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
-21-
<PAGE>
8. Exchange Act Reporting Requirements
-----------------------------------
When it is first legally required to do so, the Company shall register
its Common Stock under Section 12 of the Exchange Act and shall timely file such
information, documents and reports as the Commission may require or prescribe
under Section 13 of the Exchange Act. From and after the effective date of the
first registration statement filed by the Company under the Securities Act, the
Company shall (whether or not it shall then be required to do so) timely file
such information, documents and reports as the Commission may require or
prescribe under Section 13 or 15(d) (whichever is applicable) of the Exchange
Act. In addition, the Company shall take such other measures and file such
other information, documents and reports, as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any successor provision) and the use of Form S-3.
Immediately upon becoming subject to the reporting requirements of
either Section 13 or 15(d) of the Exchange Act, the Company shall forthwith upon
request furnish any Holder of applicable Restricted Stock (i) a written
statement by the Company that it has complied with such reporting requirements,
(ii) a copy of the most recent annual or quarterly report of the Company and
(iii) such other reports and documents filed by the Company with the Commission
as such Holder may reasonably request in availing itself of an exemption for the
sale of Restricted Stock without registration under the Securities Act.
The purpose of the foregoing requirements are (x) to enable any such
Holder to comply with the current public information requirements contained in
paragraph (c) of Rule 144 under the Securities Act (or any successor provision)
and (y) to qualify the Company for the use of registration statements on Form S-
3.
9. Requirements for Participation in Underwritten Offerings
--------------------------------------------------------
No Person may participate in any underwritten offering pursuant to a
Registration hereunder unless such Person (a) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
-22-
<PAGE>
10. Suspension of Sales
-------------------
Upon receipt of written notice from the Company that a Registration
Statement or Prospectus contains a Misstatement, each Holder of Restricted Stock
shall forthwith discontinue disposition of Restricted Stock until such Holder
has received copies of the supplemented or amended Prospectus required by
Section 5(1) hereof, or until such Holder is advised in writing by the
registrant that the use of the Prospectus may be resumed, and, if so directed by
the registrant, such Holder shall deliver to the registrant (at the registrant's
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Restricted Stock current at the time
of receipt of such notice. In the event the registrant shall give any such
notice, the 90-day period referred to in Section 5(a) hereof shall be extended
by the number of days during the period from and including the date of the
giving of such notice to and including the date when each seller of Restricted
Stock covered by such Registration Statement either has received the copies of
the supplemented or amended prospectus contemplated by Section 5(1) hereof or
has been advised in writing by the registrant that the use of the Prospectus may
be resumed.
11. Future Registration Rights Agreements
-------------------------------------
Except for an underwriting agreement between the Company and one or
more professional underwriters of securities, the Company shall not agree to
register any Equity Securities under the Securities Act unless such agreement
specifically provides that:
-23-
<PAGE>
(a) the Holder of such Equity Securities may not participate in any
Demand Registration without the consent of the Holders of a majority of the
shares of the Restricted Stock included in such registration unless:
(1) the offering of the Restricted Stock is to be a Firm Commitment
Underwritten Offering and the managing underwriter concludes that the public
offering or sale of such Equity Securities would not interfere with the
successful marketing of all Restricted Stock requested to be sold and
(2) the Holders of Restricted Stock shall have the right to
participate, to the extent they may request, in any registration statement
initiated under a demand registration right exercised by the Holder of such
Equity Securities, except that if the managing underwriter of a public offering
made pursuant to such demand registration limits the number of shares of Equity
Securities to be sold, the participation of the Holders of the Restricted Stock
and the Holders of all other Equity Securities (other than the Equity Securities
held by such Holder of Equity Securities) shall be determined as set forth in
Section 3 hereof;
(b) the holder of such Equity Securities may not participate in any
Piggyback Registration if the sale of Restricted Stock is to be underwritten
unless, if the managing underwriter limits the total number of shares to be
sold, the Holders of such Equity Securities and the Holder of Restricted Stock
are entitled to participate in such underwritten distribution based on the order
of priority set forth in Section 3 hereof, and
(c) all Equity Securities excluded from any Registration as a result
of the foregoing limitations may not be publicly offered or sold for a period
(not to exceed at least 30 days prior to the effective date and 90 days
thereafter) that the managing underwriter reasonably determined is necessary in
order to effect the underwritten public offering of Restricted Stock registered
pursuant to this Agreement.
12. Miscellaneous
-------------
(a) Remedies
--------
Each Holder of Restricted Stock, in addition to being entitled to
exercise all rights provided herein, and granted by law, including recovery of
damages, shall be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
-24-
<PAGE>
(b) Agreements; Entire Agreement
----------------------------
The Company shall not on or after the date of this Agreement enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders of Restricted Stock in this Agreement or otherwise
conflicts with the provisions hereof.
Except for the Registration Rights Agreement dated May 3, 1993, the
Amended and Restated Registration Rights Agreement dated May 28, 1993 and the
Second Amended and Restated Registration Rights Agreement dated October 1, 1993
(collectively, the "Prior Agreements"), the Company has not previously entered
into any agreement with respect to its securities granting any registration
rights to any Person. This Agreement constitutes the entire agreement among the
parties and supersedes any prior understandings, agreements or representations
by or among the parties, written or oral, that may have related in any way to
the subject matter hereof, including, without limitation, the Prior Agreements.
(c) Amendments and Waivers
----------------------
The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company has
obtained the written consent of the Holders of at least 66% of the outstanding
shares of Restricted Stock; provided, that for so long as BofA or BFC holds any
Restricted Stock any waiver or amendment that would (i) nullify the underlying
purpose of this Agreement or (ii) adversely affect BFC or BofA, as the case may
be, vis a vis the other Investors on a proportionate basis shall not be made
without the prior written consent of BFC or BofA as applicable. The foregoing
notwithstanding, a waiver or consent to departure from the provisions hereof
that relates exclusively to the rights of Holders of shares of Restricted Stock
whose shares are being sold pursuant to a Registration Statement and that does
not directly or indirectly affect the rights of other Holders of shares of
Restricted Stock may be given by the Holders of a majority of the shares of
Restricted Stock being sold.
(d) Notices
-------
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder of Restricted Stock, at the most current address
given by such Holder to the Company in accordance with the provisions hereof,
which address initially is, with respect to each Investor, the address set forth
on Schedule A to the Stockholders Agreement; and
-25-
<PAGE>
(2) if to the Company, by each Investor initially at its address set
forth in the Applicable Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions hereof, with a copy to
Osborn Maledon, P.A., 2929 North Central Avenue, Suite 2100, Phoenix, Arizona
85012-2794, Attention: Michelle M. Matiski, Esq.
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt acknowledged, if telecopied; and on the next
business day, if timely delivered to an air courier guaranteeing overnight
delivery. The Company shall promptly provide a list of the most current
addresses of the Holders of Restricted Stock given to it in accordance with the
provisions hereof to any such Holder for the purpose of enabling such Holder to
communicate with other Holders in connection with this Agreement.
(e) Successors and Assigns
----------------------
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent Holders of Restricted
Stock.
(f) Counterparts
------------
This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(g) Table of Contents and Headings
------------------------------
The table of contents and headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law
-------------
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Arizona, without regard to any provision or
rule of the laws of the State of Arizona which would otherwise cause the laws of
a jurisdiction other than the State of Arizona to be applied.
-26-
<PAGE>
(i) Severability
In the event that only one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(j) Forms
All references in this Agreement to particular forms of registration
statements are intended to include all successor forms which are intended to
replace, or to apply to similar transactions as, the forms herein referenced.
* * * *
SIGNATURE PAGES TO THIRD AMENDED AND
RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CITADEL COMMUNICATIONS CORPORATION
By:________________________________
Name:___________________________
Title:__________________________
___________________________________
Lawrence R. Wilson
(for purposes of Section 4(a) only)
___________________________________
Claire Wilson
(for purposes of Section 4(a) only)
-27-
<PAGE>
INVESTOR SIGNATURE PAGES
BAKER, FENTRESS & COMPANY
By:_________________________________
Name:____________________________
Title:___________________________
ABRY BROADCAST PARTNERS, II, L.P.
By ABRY CAPITAL, L.P.
Its General Partner
By ABRY HOLDINGS, INC.
Its General Partner
By:_______________________________
Name:_____________________________
Title:____________________________
-28-
<PAGE>
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By: ABRY CAPITAL, L.P.
Its General Partner
By: ABRY HOLDINGS, INC.
Its General Partner
By:_________________________________
Name:____________________________
Title:___________________________
OPPENHEIMER & CO., INC.
By:_________________________________________
Name:____________________________________
Title:___________________________________
BANK OF AMERICA ILLINOIS
By:_________________________________________
Name:____________________________________
Title:___________________________________
-29-
<PAGE>
BofA Co-Investors:
-----------------
*
---------------------------
Christopher J. Perry
*
---------------------------
Robert F. Perille
*
---------------------------
M. Ann O'Brien
*
---------------------------
Ford S. Bartholow
*
---------------------------
Jeffrey M. Mann
*
---------------------------
Matthew W. Clary
*
---------------------------
Thomas E. Van Pelt, Jr.
*By:_________________________ Name:
Attorney-in-Fact
-30-
<PAGE>
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED
---------------------------------------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "First Amendment") is made as of December ___, 1996 by and among
Citadel Communications Corporation, a Nevada corporation (the "Company"); The
Endeavour Capital Fund Limited Partnership, an Oregon limited partnership
("Endeavour"); the investors whose names are designated on the Signature Pages
to this First Amendment as "Endeavour Co-Investors" (the "Endeavour Co-
Investors"); the investors whose names are listed on the Investor Signature
Pages (herein referred to collectively as the "Original Investors" and
individually as an "Original Investor") of that certain Third Amended and
Restated Registration Rights Agreement dated as of June 28, 1996 (the
"Registration Rights Agreement") between the Company, the Original Investors
and, with respect to section 4(a) of the Registration Rights Agreement, Lawrence
R. Wilson and Claire Wilson (collectively, "Wilson"); and Wilson. Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Registration Rights Agreement.
RECITALS
A. As of June 28, 1996, the Company and the Investors entered into that
certain Securities Purchase and Exchange Agreement (the "Securities Purchase and
Exchange Agreement"). In connection with the execution of the Securities
Purchase and Exchange Agreement, the Company, the Investors and Wilson executed
the Registration Rights Agreement.
B. Endeavour and the Endeavour Co-Investors are the sole owners of all of
the outstanding preferred stock of Deschutes River Broadcasting Inc., an Oregon
corporation ("Deschutes"). As of August 30, 1996, the Company, Citadel
Acquisition Corporation, a Nevada corporation and wholly-owned subsidiary of the
Company ("CAC"), and Deschutes entered into that certain Merger Agreement (the
"Merger Agreement"). As of September 17, 1996, CAC changed its name to Deschutes
License, Inc. ("DLI"), and as of December 18, 1996 DLI assigned its rights under
the Merger Agreement to Deschutes Acquisition Corporation, a Nevada corporation
and wholly-owned subsidiary of the Company ("DAC"). Pursuant to the Merger
Agreement, Deschutes and DAC will merge, with DAC to be the surviving
corporation. In consideration of such merger, Endeavour, the Endeavour Co-
Investors and the holders of the Common Stock of Deschutes will receive Class A
Common Stock, Series E Preferred Stock and/or options to purchase Class A Common
Stock.
C. In order to induce Endeavour and the Endeavour Co-Investors to permit
the transactions contemplated by the Merger Agreement, the Company, the Original
Investors, and Wilson wish to amend the Registration Rights Agreement to grant
registration rights to Endeavour and the Endeavour Co-Investors to the same
extent as the Original Investors under the Registration Rights Agreement.
D. In connection with the transactions contemplated by the Merger
Agreement, the Company, Endeavour, the Endeavour Co-Investors, and certain other
parties have also agreed to enter into the following agreements, each dated as
of the date hereof: that certain First
<PAGE>
Amendment to Second Amended and Restated Stockholders Agreement; that certain
First Amendment to Securities Purchase and Exchange Agreement; that certain
First Amendment to Amended and Restated Voting Agreement; and that certain
Security Holder Agreement (the "Endeavour Proxy") (together with this First
Amendment, the Merger Agreement, and the transactions contemplated thereby, the
"Contemplated Transactions").
ACCORDINGLY, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this First Amendment agree as follows:
1. Consents and Waivers. The Original Investors hereby consent to this
First Amendment and inclusion of Endeavour and the Endeavour Co-Investors as
"Investors" under the Registration Rights Agreement. Further, Original Investors
waive any rights they may have pursuant to Section 11 of the Registration Rights
Agreement in connection with the Contemplated Transactions.
2. Amendments.
(a) Section 1 of the Registration Rights Agreement is amended by deleting
the definitions of "Additional Preferred Stock" and "Preferred Stock" and adding
the following definitions in appropriate alphabetical order:
"Additional Preferred Stock" shall mean any additional shares
of preferred stock issued by the Company other than the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock or Series E Preferred Stock.
"Endeavour" shall mean and refer to Endeavour Capital Fund
Limited Partnership, an Oregon limited partnership.
"Endeavour Co-Investors" shall mean and refer, individually and
collectively, to those individuals who are designated on the Endeavour
Signature Page to the First Amendment as the "Endeavour Co-Investors."
"First Amendment" shall mean that First Amendment to this
Agreement dated as of December __, 1996 between the Company, the
Original Investors, Endeavour, the Endeavour Co-Investors and Wilson.
"Investor" and "Investors" shall mean those investors whose
names are listed on the Investor Signature Pages of this Agreement,
Endeavour and the Endeavour Co-Investors.
"Preferred Stock" shall mean the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock and Additional Preferred Stock,
collectively.
2
<PAGE>
"Original Investors" shall mean the investors whose names are
listed on the Investor Signature Pages of the Registration Rights
Agreement prior to the execution of the First Amendment.
"Series E Preferred Stock" shall mean the Series E Convertible
Preferred Stock, par value $.001 per share, of the Company.
(b) The parties listed on the Endeavour Signature Page for the First
Amendment to Third Amended and Restated Registration Rights Agreement attached
hereto shall be deemed parties to the Registrations Rights Agreement, as
amended, and are deemed added to the Investor Signature Pages to the
Registration Rights Agreement, as amended.
(c) The following additional Section (k) will be added to Section 12
of the Registration Rights Agreement:
(k) Incorporation of Recitals. The Recitals set forth in
the First Amendment are incorporated herein.
3. Choice of Law. This First Amendment shall be governed by and
construed in accordance with the internal laws of the State of Arizona, without
regard to any provision or rule of the laws of the State of Arizona which would
otherwise cause the laws of a jurisdiction other than the State of Arizona to be
applied.
4. Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
5. Fees and Expenses. The Company shall pay the reasonable legal fees
and expenses of the Original Investors incurred in the preparation of this First
Amendment, review of the documents and agreements in connection with the
transactions described in the Recital hereof and the preparation of additional
documents and agreements related to such transactions.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the day
and year first above written.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
3
<PAGE>
[SIGNATURE PAGE FOR FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
CITADEL COMMUNICATIONS CORPORATION
By_______________________________________________
Its___________________________________________
_________________________________________________
Lawrence R. Wilson
(for purposes of Section 4(a) of the Registration
Rights Agreement only)
_________________________________________________
Claire Wilson
(for purposes of Section 4(a) of the Registration
Rights Agreement only)
ABRY BROADCAST PARTNERS II, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By________________________________________
Its_______________________________________
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By________________________________________
Its_______________________________________
4
<PAGE>
[SIGNATURE PAGE FOR FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
BAKER, FENTRESS & COMPANY
By_______________________________________________
Its___________________________________________
OPPENHEIMER & CO., INC.
By_______________________________________________
Its___________________________________________
BANK OF AMERICA ILLINOIS
By_______________________________________________
Its___________________________________________
BofA CO-INVESTORS:
*
-------------------------------------------------
Christopher J. Perry
*
-------------------------------------------------
Robert F. Perille
*
-------------------------------------------------
M. Ann O'Brien
*
-------------------------------------------------
Ford S. Bartholow
*
-------------------------------------------------
Jeffrey M. Mann
*
-------------------------------------------------
Matthew W. Clary
*
-------------------------------------------------
Sheryl E. Bartol
*
-------------------------------------------------
Andrea P. Joselit
* By:____________________________________________
Name:
Attorney-In-Fact
5
<PAGE>
[ENDEAVOUR SIGNATURE PAGE FOR FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED PARTNERSHIP
By DVS Management, Inc.
Its General Partner
By____________________________________________
Its_________________________________________
ENDEAVOUR CO-INVESTORS:
_________________________________________________
Joseph P. Tennant
THE SCHAFBUCH FAMILY TRUST u/a/d 2-15-94
By:___________________________________________
Richard M. Schafbuch, Trustee
By:___________________________________________
Susan P. Schafbuch, Trustee
BABSON CAPITAL PARTNERS LIMITED PARTNERSHIP
By_______________________________________________
Its___________________________________________
_________________________________________________
Tal Johnson
_________________________________________________
Edward T. Hardy
_________________________________________________
Ralph W. McKee
6
<PAGE>
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "Second Amendment") is made as of September 26, 1997, by and
among Citadel Communications Corporation, a Nevada corporation (the "Company");
Philip J. Urso ("Urso"); the investors whose names are designated on the Urso
Signature Page to this Second Amendment as "Urso Co-Investors" (the "Urso Co-
Investors"); The Endeavour Capital Fund Limited Partnership, an Oregon limited
partnership ("Endeavour"); the investors whose names are designated on the
Signature Pages to the First Amendment to Third Amended and Restated
Registration Rights Agreement dated as of December 31, 1996 (the "First
Amendment"), as "Endeavour Co-Investors" (the "Endeavour Co-Investors"); the
investors whose names are listed on the Investor Signature Pages (herein
referred to collectively as the "Original Investors" and individually as an
"Original Investor") of that certain Third Amended and Restated Registration
Rights Agreement dated as of June 28, 1996 (the "Registration Rights Agreement")
between the Company, the Original Investors and, with respect to section 4(a) of
the Registration Rights Agreement, Lawrence R. Wilson and Claire Wilson
(collectively, "Wilson"); and Wilson. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the
Registration Rights Agreement.
RECITALS
A. As of June 28, 1996, the Company and the Investors entered into that
certain Securities Purchase and Exchange Agreement (the "Securities Purchase and
Exchange Agreement"). In connection with the execution of the Securities
Purchase and Exchange Agreement, the Company, the Investors and Wilson executed
the Registration Rights Agreement.
B. In connection with the execution of the First Amendment, the Company,
the Investors, Wilson, Endeavor and the Endeavour Co-Investors executed the
Registration Rights Agreement, as amended by the First Amendment.
C. Urso and certain Urso Co-Investors are the sole owners of all of the
outstanding stock of Urso Major Broadcasting Company, a Rhode Island corporation
("Urso Major"). As of June 6, 1997, the Company, Citadel, Urso Major, Urso and
certain Urso Co-Investors entered into that certain Merger Agreement (the "Urso
Major Merger Agreement"). Pursuant to the Urso Major Merger Agreement, Urso
Major and Citadel will merge, with Citadel to be the surviving corporation. In
consideration of the Urso Major Merger, Urso and certain Urso Co-Investors will
receive Series F Preferred Stock. Urso and certain Urso Co-Investors are the
sole owners of all of the outstanding equity interests in Bear Broadcasting
Limited Liability Company, a Rhode Island limited liability company ("Bear"). As
of June 6, 1997, the Company, Citadel, Bear, Urso and certain Urso Co-Investors
entered into that certain Merger Agreement (the "Bear Merger Agreement", and
collectively with the Urso Major Merger Agreement, the "Urso Merger
Agreements"). Pursuant to the Bear Merger Agreement, Bear and Citadel will
merge, with Citadel to be the surviving corporation. In consideration of the
Bear Merger, Urso and certain Urso Co-Investors will receive Series F Preferred
Stock.
<PAGE>
D. In order to induce Urso and the Urso Co-Investors to consummate the
transactions contemplated by the Urso Merger Agreements, the parties to this
Second Amendment wish to amend the Registration Rights Agreement to grant
registration rights to Urso and the Urso Co-Investors to the same extent as the
Original Investors under the Registration Rights Agreement.
E. In connection with the transactions contemplated by the Urso Merger
Agreements, the Company, Urso, the Urso Co-Investors, and certain other parties
have also agreed to enter into the following agreements, each dated as of the
date hereof: that certain Third Amendment to Second Amended and Restated
Stockholders Agreement; that certain Third Amendment to Securities Purchase and
Exchange Agreement; that certain Second Amendment to Third Amended and Restated
Voting Agreement; and that certain Security Holder Agreement (the "Urso Proxy")
(together with this Second Amendment, the Urso Merger Agreements, and the
transactions contemplated thereby, the "Contemplated Transactions").
ACCORDINGLY, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Second Amendment agree as follows:
1. Consents and Waivers. The Original Investors, Endeavour and the
Endeavour Co-Investors hereby consent to this Second Amendment and inclusion
of Urso and the Urso Co-Investors as "Investors" under the Registration Rights
Agreement. Further, the Original Investors, Endeavour and the Endeavour
Co-Investors waive any rights they may have pursuant to Section 11 of the
Registration Rights Agreement in connection with the Contemplated Transactions.
2. Amendments.
(a) Section 1 of the Registration Rights Agreement is amended by deleting
the definitions of "Additional Preferred Stock" and "Preferred Stock" and adding
the following definitions in appropriate alphabetical order:
"Additional Preferred Stock" shall mean any additional shares of
preferred stock issued by the Company other than the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock.
"Investor" and "Investors" shall mean those investors whose names are
listed on the Investor Signature Pages of this Agreement, Endeavour,
the Endeavour Co-Investors, Urso and the Urso Co-Investors.
"Original Investors" shall mean the investors whose names are listed
on the Investor Signature Pages of this Agreement prior to the
execution of the First Amendment.
"Preferred Stock" shall mean the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Additional
Preferred Stock, collectively.
<PAGE>
"Second Amendment" shall mean that Second Amendment to this Agreement
dated as of September 26, 1997, among the Company, the Original
Investors, Wilson, Endeavour, the Endeavour Co-Investors, Urso and the
Urso Co-Investors.
"Series F Preferred Stock" shall mean the Series F Convertible
Preferred Stock, par value $.001 per share, of the Company.
"Urso" shall mean and refer Philip J. Urso.
"Urso Co-Investors" shall mean and refer, individually and
collectively, to those individuals who are designated on the Urso
Signature Page to the Second Amendment as the "Urso Co-Investors."
(b) The parties listed on the Urso Signature Page for the Second
Amendment to Third Amended and Restated Registration Rights Agreement attached
hereto shall be deemed parties to the Registration Rights Agreement, as amended,
and are deemed added to the Investor Signature Pages to the Registration Rights
Agreement, as amended.
(c) The following additional Section (l) will be added to Section 12
of the Registration Rights Agreement:
(l) Incorporation of Recitals. The Recitals set forth in the
Second Amendment are incorporated herein.
3. Choice of Law. This Second Amendment shall be governed by and
construed in accordance with the internal laws of the State of Arizona, without
regard to any provision or rule of the laws of the State of Arizona which would
otherwise cause the laws of a jurisdiction other than the State of Arizona to be
applied.
4. Counterparts. This Second Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the day
and year first above written.
CITADEL COMMUNICATIONS CORPORATION
By
-------------------------------------
Its
---------------------------------
----------------------------------------
Lawrence R. Wilson
<PAGE>
(for purposes of Section 4(a) of the
Registration Rights Agreement only)
----------------------------------------
Claire Wilson
(for purposes of Section 4(a) of the
Registration Rights Agreement only)
ABRY BROADCAST PARTNERS II, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By
---------------------------
Its
--------------------------
4
[SIGNATURE PAGE FOR SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
BAKER, FENTRESS & COMPANY
By
---------------------------
Its
--------------------------
OPPENHEIMER & CO., INC.
By
---------------------------
Its
--------------------------
BANK OF AMERICA, NT&SA, a National
Trust and Savings Association
By
---------------------------
Its
--------------------------
BOFA CO-INVESTORS:
*
------------------------------
Christopher J. Perry
<PAGE>
*
------------------------------
Robert F. Perille
*
------------------------------
M. Ann O'Brien
*
------------------------------
Ford S. Bartholow
*
------------------------------
Jeffrey M. Mann
*
------------------------------
Matthew W. Clary
*
------------------------------
Sheryl E. Bartol
*
------------------------------
Andrea P. Joselit
* By:
------------------------
Name:
Attorney-In-Fact
[ENDEAVOUR SIGNATURE PAGE FOR SECOND AMENDMENT TO THIRD
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED PARTNERSHIP
By DVS Management, Inc.
Its General Partner
By
---------------------------
Its
--------------------------
ENDEAVOUR CO-INVESTORS:
*
------------------------------
Joseph P. Tennant
THE SCHAFBUCH FAMILY TRUST u/a/d 2-15-94
By: *
--------------------------
Richard M. Schafbuch, Trustee
<PAGE>
By *
--------------------------------
Susan P. Schafbuch, Trustee
BABSON CAPITAL PARTNERS LIMITED PARTNERSHIP
By *
--------------------------------
Its
-------------------------------
*
-----------------------------------
Tal Johnson
*
-----------------------------------
Edward T. Harady
*
-----------------------------------
Ralph W. McKee
* By:
-----------------------------
Name:
Attorney-In-Fact
[URSO SIGNATURE PAGE FOR SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
URSO:
Philip J. Urso
URSO CO-INVESTORS:
*
-----------------------------------
Phillip Norton
*
-----------------------------------
Richard Poholek
*
-----------------------------------
Karen Kutniewski
*
-----------------------------------
Pat Bowen
*
-----------------------------------
Tom Jenkins
*
<PAGE>
------------------------------
Juliet Rice
*
------------------------------
Jeff Thompson
*
------------------------------
M. Linda Urso
*
------------------------------
Mark Urso
* By:
------------------------
Name:
Attorney-In-Fact
(SNIDER SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT)
SNIDER CO-INVESTORS:
*
------------------------------
Ted L. Snider, Sr.
Address: 571 Valley Club Circle
Little Rock, Arkansas 72212
------------------------------
Jane J. Snider
------------------------------
Ted L. Snider, Jr.
------------------------------
Calvin G. Arnold
<PAGE>
THIRD AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This THIRD AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "Third Amendment") is made as of October 15, 1997, by and among
Citadel Communications Corporation, a Nevada corporation (the "Company"); the
investors whose names are designated on the Snider Signature Page to this Second
Amendment as "Snider Co-Investors" (the "Snider Co-Investors"); Philip J. Urso
("Urso"); the investors whose names are designated on the Urso Signature Page to
the Second Amendment to Third Amended and Restated Registration Rights Agreement
dated as of September 26, 1997 as "Urso Co-Investors" (the "Urso Co-Investors");
The Endeavour Capital Fund Limited Partnership, an Oregon limited partnership
("Endeavour"); the investors whose names are designated on the Signature Pages
to the First Amendment to Third Amended and Restated Registration Rights
Agreement dated as of December 31, 1996 (the "First Amendment"), as "Endeavour
Co-Investors" (the "Endeavour Co-Investors"); the investors whose names are
listed on the Investor Signature Pages (herein referred to collectively as the
"Original Investors" and individually as an "Original Investor") of that certain
Third Amended and Restated Registration Rights Agreement dated as of June 28,
1996 (the "Registration Rights Agreement") between the Company, the Original
Investors and, with respect to section 4(a) of the Registration Rights
Agreement, Lawrence R. Wilson and Claire Wilson (collectively, "Wilson"); and
Wilson. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Registration Rights Agreement.
RECITALS
A. As of June 28, 1996, the Company and the Investors entered into that
certain Securities Purchase and Exchange Agreement (the "Securities Purchase and
Exchange Agreement"). In connection with the execution of the Securities
Purchase and Exchange Agreement, the Company, the Investors and Wilson executed
the Registration Rights Agreement.
B. In connection with the execution of the First and Second Amendments,
the Company, the Investors, Wilson, Endeavor, the Endeavour Co-Investors, Urso
and the Urso Co-Investors executed the Registration Rights Agreement, as amended
by the First Amendment and the Second Amendment.
C. The Snider Co-Investors are the respective sole owners of all of the
outstanding stock of Snider Corporation, an Arkansas corporation (owned by T.
Snider and J. Snider), and of Snider Broadcasting Corporation, an Arkansas
corporation (owned by D. Snider and Arnold) (such corporations, collectively,
the "Snider Entities"). As of June 2, 1997, the Company and Citadel entered into
Merger Agreements with the respective Snider Entities and their respective
shareholders (the "Merger Agreements"). Pursuant to the Merger Agreements, each
of the Snider Entities will merge with Citadel, with Citadel to be the surviving
corporation. In consideration of such mergers, the Snider Co-Investors will
receive Series G Preferred Stock.
-1-
<PAGE>
D. In order to induce the Snider Co-Investors to consummate the
transactions contemplated by the Merger Agreements, the parties to this Third
Amendment wish to amend the Registration Rights Agreement to grant registration
rights to the Snider Co-Investors to the same extent as the Original Investors
under the Registration Rights Agreement.
E. In connection with the transactions contemplated by the Merger
Agreements, the Company, the Snider Co-Investors, and certain other parties have
also agreed to enter into the following agreements, each dated as of the date
hereof: that certain Fourth Amendment to Second Amended and Restated
Stockholders Agreement; that certain Fourth Amendment to Securities Purchase and
Exchange Agreement; and that certain Fourth Amended and Restated Voting
Agreement (together with this Third Amendment, the Merger Agreements, and the
transactions contemplated thereby, the "Contemplated Transactions").
ACCORDINGLY, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Third Amendment agree as follows:
1. Consents and Waivers. The Original Investors, Endeavour, the
Endeavour Co-Investors, Urso and the Urso Co-Investors hereby consent to this
Third Amendment and inclusion of the Snider Co-Investors as "Investors" under
the Registration Rights Agreement. Further, the Original Investors, Endeavour,
the Endeavour Co-Investors, Urso and the Urso Co-Investors waive any rights they
may have pursuant to Section 11 of the Registration Rights Agreement in
connection with the Contemplated Transactions.
2. Amendments.
(a) Section 1 of the Registration Rights Agreement is amended by
deleting the definitions of "Additional Preferred Stock" and "Preferred Stock"
and adding the following definitions in appropriate alphabetical order:
"Additional Preferred Stock" shall mean any additional shares
of preferred stock issued by the Company other than the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock and Series G Preferred Stock.
"Investor" and "Investors" shall mean those investors whose
names are listed on the Investor Signature Pages of this Agreement,
Endeavour, the Endeavour Co-Investors, Urso, the Urso Co-Investors
and the Snider Co-Investors.
-2-
<PAGE>
"Original Investors" shall mean the investors whose names are
listed on the Investor Signature Pages of this Agreement prior to the
execution of the First Amendment.
"Preferred Stock" shall mean the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series G Preferred
Stock and Additional Preferred Stock, collectively.
"Series G Preferred Stock" shall mean the Series G Convertible
Preferred Stock, par value $.001 per share, of the Company.
"Snider Co-Investors" shall mean and refer, individually and
collectively, to those individuals who are designated on the Snider
Signature Page to the Third Amendment as the "Snider Co-Investors."
"Third Amendment" shall mean that Third Amendment to this
Agreement dated as of October 15, 1997, among the Company, the
Original Investors, Wilson, Endeavour, the Endeavour Co-Investors,
Urso, the Urso Co-Investors and the Snider Co-Investors.
(b) The parties listed on the Snider Signature Page for this Third
Amendment shall be deemed parties to the Registration Rights Agreement, as
amended, and are deemed added to the Investor Signature Pages to the
Registration Rights Agreement, as amended.
(c) The following additional Section (l) will be added to Section 12
of the Registration Rights Agreement:
(l) Incorporation of Recitals. The Recitals set forth in
the Third Amendment are incorporated herein.
3. Choice of Law. This Third Amendment shall be governed by and
construed in accordance with the internal laws of the State of Arizona, without
regard to any provision or rule of the laws of the State of Arizona which would
otherwise cause the laws of a jurisdiction other than the State of Arizona to be
applied.
4. Counterparts. This Third Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
-3-
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the day
and year first above written.
CITADEL COMMUNICATIONS CORPORATION
By_____________________________________
Its_________________________________
Lawrence R. Wilson
(for purposes of Section 4(a) of the
Registration Rights Agreement only)
_______________________________________
Claire Wilson
(for purposes of Section 4(a) of the
Registration Rights Agreement only)
ABRY BROADCAST PARTNERS II, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By________________________________
Its_______________________________
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By________________________________
Its_______________________________
-4-
<PAGE>
[SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
BAKER, FENTRESS & COMPANY
By_____________________________________
Its_________________________________
OPPENHEIMER & CO., INC.
By_____________________________________
Its_________________________________
BANK OF AMERICA, NT&SA, a National Trust and
Savings Association
By__________________________________
Its______________________________
BOFA CO-INVESTORS:
*
---------------------------------------
Christopher J. Perry
*
---------------------------------------
Robert F. Perille
*
---------------------------------------
M. Ann O'Brien
*
---------------------------------------
Ford S. Bartholow
*
---------------------------------------
Jeffrey M. Mann
*
---------------------------------------
Matthew W. Clary
*
---------------------------------------
Sheryl E. Bartol
*
---------------------------------------
Andrea P. Joselit
* By:__________________________________
Name:
Attorney-In-Fact
-5-
<PAGE>
[ENDEAVOUR SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED
PARTNERSHIP
By DVS Management, Inc.
Its General Partner
By__________________________________
Its_______________________________
ENDEAVOUR CO-INVESTORS:
*
---------------------------------------
Joseph P. Tennant
THE SCHAFBUCH FAMILY TRUST u/a/d 2-15-94
By: *
---------------------------------
Richard M. Schafbuch, Trustee
By: *
---------------------------------
Susan P. Schafbuch, Trustee
BABSON CAPITAL PARTNERS LIMITED
PARTNERSHIP
By *
_____________________________________
Its_________________________________
*
---------------------------------------
Tal Johnson
*
---------------------------------------
Edward T. Hardy
*
---------------------------------------
Ralph W. McKee
* By:__________________________________
Name:
-6-
<PAGE>
Attorney-In-Fact
-7-
<PAGE>
[URSO SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
URSO:
---------------------------------------
Philip J. Urso
URSO CO-INVESTORS:
*
-------------------------------------
Phillip Norton
*
-------------------------------------
Richard Poholek
*
--------------------------------------
Karen Kutniewski
*
--------------------------------------
Pat Bowen
*
--------------------------------------
Tom Jenkins
*
--------------------------------------
Juliet Rice
*
--------------------------------------
Jeff Thompson
*
--------------------------------------
M. Linda Urso
*
--------------------------------------
Mark Urso
* By:
---------------------------------
Name:
Attorney-In-Fact
-8-
<PAGE>
[SNIDER SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
SNIDER CO-INVESTORS:
---------------------------------------
Ted L. Snider, Sr.
Address:
571 Valley Club Circle
Little Rock, Arkansas 72212
---------------------------------------
Jane J. Snider
---------------------------------------
Ted L. Snider, Jr.
---------------------------------------
Calvin G. Arnold
-9-
