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Exhibit 10.14
THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT (this "Third Amendment") is made as of September 26,
1997 by and among CITADEL COMMUNICATIONS CORPORATION, a Nevada corporation (the
"Company"); ABRY BROADCAST PARTNERS II, L.P., a Delaware limited partnership
("ABRY"); ABRY/CITADEL INVESTMENT PARTNERS, L.P., a Delaware limited
partnership ("ABRY/CIP"); XXXXX, XXXXXXXX & COMPANY, a Delaware corporation
("BFC"); XXXXXXXXXXX & CO., INC., a Delaware corporation ("Xxxxxxxxxxx"); BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as successor by merger to
Bank of America Illinois, which was formerly known as Continental Bank, N.A.
("BofA"); XXXXXXXXXXX X. XXXXX, XXXXXX X. XXXXXXX, M. XXX X'XXXXX, FORD X.
XXXXXXXXX, XXXXXXX X. XXXX, XXXXXXX X. XXXXX, XXXXXX X. XXXXXX, and XXXXXX X.
XXXXXXX (Xxxxxx and Xxxxxxx being successors in interest to Xxxxxx X. Xxx Xxxx,
Xx.) (collectively, the "BofA Co- Investors"); FINOVA CAPITAL CORPORATION, a
Delaware corporation ("FINOVA"); THE ENDEAVOUR CAPITAL FUND LIMITED
PARTNERSHIP, an Oregon limited partnership ("Endeavour"); XXXXXX X. XXXXXXX,
THE XXXXXXXXX FAMILY TRUST u/a/d 2-15-94, BABSON CAPITAL PARTNERS LIMITED
PARTNERSHIP, an Oregon limited partnership; XXX XXXXXXX, XXXXXX X. XXXXX, and
XXXXX X. XXXXX (collectively, the "Endeavour Co-Investors"); XXXXXX X. XXXX
("Xxxx"); XXXXXXX XXXXXX, XXXXXXX XXXXXXX, XXXXX XXXXXXXXXX, XXX XXXXX, XXX
XXXXXXX, XXXXXX XXXX, XXXX XXXXXXXX, M. XXXXX XXXX and XXXX XXXX (collectively,
the "Xxxx Co-Investors"); and XXXXXXXX X. XXXXXX (the "Executive"), and XXXXXX
XXXXXX ("CW").
RECITALS
A. As of June 28, 1996, the Company and certain other parties 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, that certain Second Amended and
Restated Stockholders Agreement as of June 28, 1996 (as later amended by the
First Amendment to Second Amended Stockholders Agreement dated as of December
31, 1996 and the Second Amendment to the Second Amended and Restated
Stockholders Agreement dated as of March 17, 1997, the "Stockholders
Agreement") was executed by the parties thereto. Capitalized terms that are not
otherwise defined herein shall have the meanings ascribed to those terms in the
Stockholders Agreement.
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B. In connection with the execution of the First Amendment to the
Second Amended and Restated Stockholders Agreement dated as of December 31,
1996, the Company, the Investors, Xxxxxx, Endeavor and the Endeavour
Co-Investors executed the Stockholders Agreement.
X. Xxxx and certain Xxxx Co-Investors are the sole owners of all of
the outstanding stock of Xxxx Major Broadcasting Company, a Rhode Island
corporation ("Xxxx Major"). As of June 6, 1997, the Company, Citadel, Xxxx
Major, Xxxx and certain Xxxx Co-Investors entered into that certain Merger
Agreement (the "Xxxx Major Merger Agreement"). Pursuant to the Xxxx Major
Merger Agreement, Xxxx Major and Citadel will merge, with Citadel to be the
surviving corporation. In consideration of the Xxxx Major Merger, Xxxx and
certain Xxxx Co-Investors will receive Series F Preferred Stock. Xxxx and
certain Xxxx 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, Xxxx and certain Xxxx Co- Investors entered into that certain Merger
Agreement (the "Bear Merger Agreement", and collectively with the Xxxx Major
Merger Agreement, the "Xxxx 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, Xxxx and certain Xxxx Co-
Investors will receive Series F Preferred Stock.
D. In order to induce Xxxx and the Xxxx Co-Investors to consummate the
transactions contemplated by the Xxxx Merger Agreements, the parties to this
Third Amendment wish to amend the Stockholders Agreement to xxxxx Xxxx and the
Xxxx Co- Investors all of the rights (and make Xxxx and the Xxxx Co-Investors
subject to all of the obligations) as Investors under the Stockholders
Agreement by amending the Stockholders Agreement to make Xxxx and the Xxxx
Co-Investors parties to the Stockholders Agreement.
E. In connection with the transactions contemplated by the Xxxx Merger
Agreements, the Company, Xxxx, the Xxxx Co-Investors, and certain other parties
have also agreed to enter into the following agreements, each of even date
herewith: that certain Second Amendment to Third Amended and Restated
Registration Rights 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
"Xxxx Proxy") (together with this Third Amendment, the Xxxx 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. Each of the parties hereto hereby
consents to this Third Amendment and the inclusion of Xxxx and the Xxxx
Co-Investors as "Investors" under
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the Stockholders Agreement pursuant to the terms and conditions of this Third
Amendment. Further, each of the parties hereto waives in connection with the
Contemplated Transactions any preemptive rights he/she/it may possess pursuant
to Section 2 of the Stockholders Agreement.
2. Amendments.
2.1. Section 1 of the Stockholders Agreement is amended
by adding the following definitions in appropriate alphabetical order:
"Majority Xxxx Holders" means, at any time, holders of a
majority of the Xxxx Underlying Common Stock.
"Series F Preferred Stock" shall mean the Series F
Convertible Preferred Stock of the Company, par value $.001
per share.
"Third Amendment" shall mean that Third Amendment to this
Agreement dated as of September 26, 1997 among Endeavour, the
Endeavour Co- Investors, Xxxx, the Xxxx Co-Investors, and
certain original parties to this Agreement.
"Xxxx" shall mean and refer to Xxxxxx X. Xxxx.
"Xxxx Co-Investors" shall mean and refer, individually and
collectively, to those individuals who are designated on the
Signature Pages to the Third Amendment as the "Xxxx
Co-Investors."
"Xxxx Stock" means (i) Series F Preferred Stock held by Xxxx
or by the Xxxx Co-Investors on the date of the Third
Amendment, (ii) Class A Common Stock issued or issuable upon
conversion of any Series F Preferred Stock described in
clause (i) above, and (iii) Equity Securities of the Company
issued or issuable with respect to any Equity Securities
referred to in any of clauses (i) through (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.
"Xxxx Underlying Common Stock" means all Xxxx Stock which is
Class A Common Stock. For purposes of this Agreement, any
Person who holds any Xxxx 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 Xxxx Stock (including the
conversion, exercise or exchange of all other Xxxx 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.
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2.2. Section 1 of the Stockholders Agreement is further
amended by modifying and/or adding the following language to the
following definitions:
2.2.1. Additional Preferred Stock. The
current definition is deleted and replaced with:
"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
or Series F Preferred Stock.
2.2.2. Affiliate. Add the following
sentence at the end of the definition:
For purposes hereof, each of Xxxx and the Xxxx
Co-Investors shall be deemed "Affiliates" of one
another.
2.2.3. Certificate of Incorporation. The
current definition is deleted and replaced with:
"Certificate of Incorporation" means the Certificate
of Incorporation of the Company as amended and in
effect on the date of the Third Amendment
(immediately after the Seventh Amendment and
Restatement thereof).
2.2.4. Investor and Investors. The current
definition is deleted and replaced with:
"Investor" and "Investors" shall mean BFC, BofA,
ABRY, ABRY/CIP, Xxxxxxxxxxx, Endeavour, the
Endeavour Co-Investors, Xxxx and the Xxxx
Co-Investors.
2.2.5. Investor Stock. The current definition
is deleted and replaced with:
"Investor Stock" means (i) the BofA Warrants, (ii)
Class B Common Stock held by the BofA Co-Investors
on the date hereof after giving effect to the
"Redemptions" and the "Reclassification" (as those
terms are defined in the Securities Purchase and
Exchange Agreement), (iii) Class B Common Stock
issued or issuable upon the exercise of the BofA
Warrants, (iv) Class A Common Stock issued or
issuable upon the conversion of Class B Common Stock
described in clause (ii) or clause (iii) above, (v)
Series A Preferred Stock held by BFC on the
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date hereof after giving effect to such Redemptions
and such Reclassification, (vi) Class A Common Stock
issued or issuable upon the conversion of any Series
A Preferred Stock described in clause (v) above,
(vii) Series B Preferred Stock held by Xxxxxxxxxxx
on the date of this Agreement after giving effect to
such Redemptions and such Reclassification, (viii)
Class A Common Stock issued or issuable upon the
conversion of any Series B Preferred Stock described
in clause (viii) above, (ix) the Shares (as that
term is defined in the Securities Purchase and
Exchange Agreement), (x) Common Stock issued or
issuable upon the conversion of any Share, (xi)
Common Stock issued or issuable upon the conversion
or exchange of any Common Stock described in clause
(x) above or this clause (xi), (xii) Series E
Preferred Stock held by Endeavour or by the
Endeavour Co-Investors on the date of the First
Amendment, (xiii) Class A Common Stock issued or
issuable upon conversion of any Series E Preferred
Stock described in clause (xii) above, (xiv) Series
F Preferred Stock held by Xxxx or by the Xxxx
Co-Investors on the date of the Third Amendment,
(xv) Class A Common Stock issued or issuable upon
conversion of any Series F Preferred Stock described
in clause (xiv) above, (xvi) Equity Securities
issued or issuable with respect to any Equity
Securities referred to in any of clauses (i) through
(xv) above or this clause (xvi) 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,
and (xvii) for purposes of Section 4 only, (A) Class
C Common Stock held by FINOVA on the date of this
Agreement after giving effect to such Redemptions
and such Reclassification, (B) Common Stock issued
upon the conversion of Common Stock described in
clause (A) above, and (C) Equity Securities issued
or issuable with respect to any Equity Securities
referred to in clause (A) or clause (B) above or in
this clause (C) 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.
2.2.6. Preferred Stock. The current
definition is deleted and replaced with:
"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
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Stock and Additional Preferred Stock, and is
sometimes used to refer to any of such Preferred
Stock.
2.2.7. Repurchase Majority Holders. The
current definition is deleted and replaced with:
"Repurchase Majority Holders" means, at any time,
any of the (a) holders of a majority of the BFC
Underlying Common Stock, (b) holders of a majority
of the ABRY Underlying Common Stock then in
existence, (c) the Majority Bank Holders, (d) the
Majority Endeavour Holders, and (e) the Majority
Xxxx Holders.
2.3. Section 7.15 of the Stockholders Agreement is
amended by adding the following:
(c) Xxxx, or any Affiliate thereof (excluding from
the definition of "Affiliate" for such purposes the last
three sentences thereof) holding any Stockholder Shares, may
exercise the rights of the Xxxx Co-Investors for all
Stockholders Shares initially issued to the Xxxx
Co-Investors.
2.4. Schedule A of the Stockholders Agreement is amended to
include Xxxx and the Xxxx Co-Investors as set forth in the Second
Addendum to Schedule A of the Second Amended and Restated Stockholders
Agreement, a copy of which is attached to this Third Amendment as
Exhibit A.
2.5. The parties listed on Exhibit A attached hereto shall be
deemed parties to the Stockholders Agreement, as amended, and are
deemed added to Schedule A of the Stockholders Agreement, as amended.
2.6. The following additional Section 7.18 is added to
Section 7 of the Stockholders Agreement:
7.18 Incorporation of Recitals. The Recitals
set forth in the Third Amendment are incorporated
herein.
3. Notices. All notices and other communications provided for
or permitted under the Stockholders Agreement shall be made pursuant to Section
12(d) thereof to Xxxx and the Xxxx Co-Investors at the following initial
addresses:
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Xxxxxx X. Xxxx
000 Xxxxxx Xxxx
Xxxxxx 000-000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
With copy to: M. Xxxxx Xxxx, Esq.
Xxxx Xxxxxxx Xxxx
00 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
4. Choice of 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 this Third Amendment and the schedules hereto will be
governed by the internal law, and not the law of conflicts, of the State of
Illinois.
5. 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.
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]
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[SIGNATURE PAGE FOR THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
CITADEL COMMUNICATIONS CORPORATION
By /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Its President
/s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
ABRY BROADCAST PARTNERS II, L.P.
By ABRY CAPITAL, L.P.
-------------------------------
Its General partner
By ABRY HOLDINGS, INC.
-------------------------------
Its General Partner
By /s/ Xxxxxx Xxxxx
-------------------------------
Its Attorney-in-Fact
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By ABRY CAPITAL, L.P.
-------------------------------
Its General partner
By ABRY HOLDINGS, INC.
-------------------------------
Its General Partner
By /s/ Xxxxxx Xxxxx
-------------------------------
Its Attorney-in-Fact
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[SIGNATURE PAGE FOR THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
XXXXX, XXXXXXXX & COMPANY
By /s/ Xxxxx X. Xxxxx
------------------------------
Its Executive Vice President
XXXXXXXXXXX & CO., INC.
By Xxxxxxx X. Xxxxxxx
------------------------------
Its Managing Director
BANK OF AMERICA, NT&SA, a National
Trust and Savings Association
By /s/ Xxxxxx X. Xxxxxxx
------------------------------
Its
FINOVA CAPITAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
------------------------------
Its Group Vice President
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[SIGNATURE PAGE FOR THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
BOFA CO-INVESTORS:
*
------------------------------
Xxxxxxxxxxx X. Xxxxx
*
------------------------------
Xxxxxx X. Xxxxxxx
*
------------------------------
M. Xxx X'Xxxxx
*
------------------------------
Ford X. Xxxxxxxxx
*
------------------------------
Xxxxxxx X. Xxxx
*
------------------------------
Xxxxxxx X. Xxxxx
*
------------------------------
Xxxxxx X. Xxxxxx
*
------------------------------
Xxxxxx X. Xxxxxxx
* By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name:
Attorney-In-Fact
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[SIGNATURE PAGE FOR THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED
PARTNERSHIP
By DVS Management, Inc.,
------------------------------
Its General Partner
By /s/ Xxxx xxx Xxxxxxxxx
------------------------------
Its President
ENDEAVOUR CO-INVESTORS:
*
----------------------------------
Xxxxxx X. Xxxxxxx
THE XXXXXXXXX FAMILY TRUST
u/a/d 2-15-94
By: *
------------------------------
Xxxxxxx X. Xxxxxxxxx, Trustee
By: *
------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
BABSON CAPITAL PARTNERS LIMITED
PARTNERSHIP
By *
------------------------------
Its
------------------------------
*
------------------------------
Xxx Xxxxxxx
*
------------------------------
Xxxxxx X. Xxxxx
*
------------------------------
Xxxxx X. XxXxx
* By: /s/ Xxxx xxx Xxxxxxxxx
-------------------------
Name: Xxxx xxx Xxxxxxxxx
Attorney-In-Fact
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[SIGNATURE PAGE FOR THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
XXXX:
/s/ Xxxxxx X. Xxxx
----------------------------
Xxxxxx X. Xxxx
XXXX CO-INVESTORS:
/s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxx
----------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxxxx
----------------------------
Xxxxx Xxxxxxxxxx
/s/ Xxx Xxxxx
----------------------------
Xxx Xxxxx
/s/ Xxx Xxxxxxx
----------------------------
Xxx Xxxxxxx
/s/ Xxxxxx Xxxx
----------------------------
Xxxxxx Xxxx
/s/ Xxxx Xxxxxxxx
----------------------------
Xxxx Xxxxxxxx
/s/ M. Xxxxx Xxxx
----------------------------
M. Xxxxx Xxxx
/s/ Xxxx Xxxx
----------------------------
Xxxx Xxxx
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EXHIBIT A
SECOND ADDENDUM TO SCHEDULE A OF THE SECOND
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SHARES OF CLASS A
COMMON STOCK ON
A
FULLY DILUTED
NAME SHARES BASIS
---- ------ -----
Xxxxxx X. Xxxx 120,357.05
Xxxxxxx Xxxxxx 21,276.61
Xxxxxxx Xxxxxxx 3,606.20
Xxxxx Xxxxxxxxxx 1,803.10
Xxx Xxxxx 901.60
Xxx Xxxxxxx 901.60
Xxxxxx Xxxx 721.28
Xxxx Xxxxxxxx 2,254.00
M. Xxxxx Xxxx 721.28
Xxxx Xxxx 721.28
----------
153,264.00
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TOTAL (this Addendum only): 153,264
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