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Exhibit 10.13
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT (this "Second Amendment") is made as of March 17, 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 ("Oppenheimer") BANK OF AMERICA
ILLINOIS, an Illinois banking corporation 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"); 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 Stockholders Agreement (as amended by the First Amendment
thereto dated as of December 31, 1996, the "Stockholders Agreement").
B. In connection with their entry into a letter agreement dated the
date of this Agreement, the parties to the Stockholders Agreement have agreed
to make certain changes to the terms thereof.
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. AMENDMENTS.
1.1. Section 1 of the Stockholders Agreement is amended by
adding thereto the following defined term and accompanying definition:
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"Eligible Firm" at any time means the media-industry
investment banking group, subsidiary or division of any of CS First
Boston, Xxxxxxxxx Xxxxxx & Xxxxxxxx, Xxxxxx Xxxx LLC, Xxxxxxx Xxxxx &
Co., Xxxxxxx Xxxxx & Co., Xxxxxx Xxxxxxx & Co. Incorporated,
Prudential Securities Inc. and Salomon Brothers Inc. or any
then-existing successor to any such group, subsidiary or division.
1.2. Section 1 of the Stockholders Agreement is amended by
adding thereto the following references:
"Call Holders" has the meaning set forth in Section 5.3.
"Eligible Holders" has the meaning set forth in Section 4.2.
"Put Holders" has the meaning set forth in Section 4.2.
1.3. Section 1 of the Stockholders Agreement is amended by
amending and restating in its entirety the definition of the term "Fair Market
Value" as follows:
"Fair Market Value" means the fair market value on
the Determination Date of the Company's Common Stock outstanding on a
Fully Diluted Basis determined on a going concern basis and assuming a
sale of 100% of the Company's Common Stock on a Fully Diluted Basis
between a willing buyer and a willing seller and taking into account
all relevant factors determinative of value; provided, however, that
in the case of a Look-Back Event, "Fair Market Value" with respect to
such Look-Back Event shall be determined in accordance with Section
5.7 below. With respect to the determination of Fair Market Value:
(a) For purposes of Section 4, unless otherwise
agreed by the Company and the Eligible Holder(s) who are then
exercising the Put in question, Fair Market Value shall be
determined by the Eligible Firm specified by the Company in
the Company's First Notice, which firm shall submit to the
Company and the Put Holders a written report setting forth
such determination.
(b) For purposes of Section 5, unless otherwise
agreed by the Company and the Call Holder(s) who are then (or
in the case of a Look-Back Event, were) subject to the Call
in question, Fair Market Value shall be determined by an
investment banking firm reasonably acceptable to the Company
and holders of a majority of the Investor Underlying Common
Stock which are then (or in the case of a Look-Back Event,
which were) subject to the Call (the "Selection Majority
Holders"), which firm shall submit to the Company and the
Call Holders a written report setting forth such
determination. If the Company and such Selection Majority
Holders are unable to agree on an investment banking firm
within 5 business days after
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the date of the meeting described in Section 5.3, then a firm
shall be selected by lot from the top-tier New York-based
investment banking firms (other than any top-tier New York
based investment banking firm with whom ABRY has had a
significant relationship or Oppenheimer or any of its
Affiliates), after the Company and such Selection Majority
Holders have each eliminated one such firm.
In either case, the expenses of such selected firm will be borne by
the Company, and the determination of such firm will be final and
binding upon all parties, except that any Holder may rescind its
exercise of a Put after the determination of Fair Market Value
following the exercise of such Put.
1.4. Section 1 of the Stockholders Agreement is amended by
deleting from such Section the definitions of the terms "Holders" and "Holders
Meeting Date."
1.5. Sections 4.1, 4.2, 4.4 and 4.7 of the Stockholders
Agreement are amended and restated in their entirety as follows:
4.1 Basic Put Rights. At any time beginning August
1, 2000, any of the Repurchase Majority Holders shall have the right
to require the Company to repurchase all or any portion of the
Preferred Stock or BofA Warrants held by such Investor(s) (the "Put")
at the Put Price by delivering a written notice to the Company
specifying the quantity of such securities to be purchased (the "Put
Notice"). Such notice will indicate not more than two (2) Eligible
Firms (the "Excluded Firms") which are to be excluded by the Company
from consideration in selecting an Eligible Firm to determine the Fair
Market Value for the relevant Determination Date. Subject to Section
4.3 hereof (regarding Puts deemed to have been exercised as of the
Date of Receipt), other than a Put exercised by the holders of a
majority of the ABRY Underlying Common Stock, no additional Put(s)
shall be exercised within the one-year period beginning on the Date of
Receipt. For so long as the Bank or any Affiliate thereof (excluding
from the definition of "Affiliate" for such purposes the last two
sentences of such definition) holds the BofA Warrants, the BofA Co-
Investors and the Class B Common Stock held by the BofA Co-Investors
shall be subject to the provisions of this Section 4 and the Class B
Common Stock held by the BofA Co-Investors shall be treated the same
as the BofA Warrants held by the Bank or such Affiliate for all
purposes of this Section 4, except that the reduction described in
clause (b) of Section 4.6 shall not apply to such Class B Common
Stock.
4.2 The Company's First Notice. Within five (5) business days
after receipt (the "Date of Receipt" for purposes of this Section 4)
of the Put Notice, the Company shall deliver a written notice (the
"Company's First Notice") to all holders of Investor Stock which is
Preferred Stock, a BofA Warrant or held by FINOVA (with respect to
such Put, the "Eligible Holders") informing them of (a) the receipt of
the Put Notice, (b) the Date of Receipt, (c) the quantity of Investor
Stock
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requested to be purchased pursuant to the Put Notice, (d) the number
of shares of Investor Underlying Common Stock then existing with
respect to outstanding shares of Preferred Stock, BofA Warrants and
shares held by FINOVA, (e) the number of shares of Common Stock on a
Fully Diluted Basis in existence at the close of business on the Date
of Receipt, and (f) the name of the Eligible Firm (which shall not be
an Excluded Firm identified in such Put Notice) which the Company has
selected to determine the Fair Market Value. The Eligible Holders who
delivered the Put Notice and all Eligible Holders who deliver a
related Put Election Notice pursuant to Section 4.3 are referred to as
the "Put Holders."
4.4 Put Closing. Upon the delivery of the Put Notice and all
Put Election Notices, the Company and the Put Holders shall in good
faith promptly determine the Put Price as provided in this Agreement,
and subject to the provisions hereof, within 10 days after the
determination of the Put Price, the Company will purchase and each Put
Holder will sell the number of such Put Holder's Put Shares specified
in such Put Holder's Put Notice or Put Election Notice at a time and
place mutually agreeable to the Company and holders of a majority of
the Investor Underlying Common Stock as to which the Put is being
exercised (the "Put Closing").
4.7 Put Default. In the event of the failure of the Company
within 210 days of the Company's receipt of the Put Notice to pay in
full the Put Price for all ABRY Stock pursuant to a Put with respect
to the ABRY Stock (a "Put Default"), the holders of a majority of the
ABRY Underlying Common Stock shall have certain affirmative rights in
connection with an Approved Sale as set forth in Section 6 hereof.
1.6. Section 7.8 of the Stockholders Agreement is amended to
change the address for notices of the Company to 000 Xxxxx Xxx Xxxxxx, Xxxxx,
XX 00000, and 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000.
2. VOTING TRUST. On the date hereof, ABRY and ABRY/CIP have
contributed the shares of the Company's capital stock which are held by them,
and have agreed to contribute all other shares of the Company's capital stock
which hereafter may be acquired by them, to a voting trust (the "Voting Trust")
established pursuant to a Voting Trust Agreement dated as of the date hereof
among the Company, ABRY, ABRY/CIP and the initial Voting Trustee thereunder.
For purposes of the Stockholders Agreement, ABRY and ABRY/CIP (and any Persons
who from time to time may hold Voting Trust Certificates issued in respect of
capital stock of the Company held in the Voting Trust), as the beneficial
owners of the capital stock in the Voting Trust, will be deemed to hold the
capital stock of the Company which is held in the Voting Trust.
3. 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 Second Amendment and the schedules hereto will be
governed by the internal law, and not the law of conflicts, of the State of
Illinois.
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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 Second 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 SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
CITADEL COMMUNICATIONS CORPORATION
By /s/ Xxxxxxxx X. Xxxxxx
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Its President
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/s/ Xxxxxxxx X. Xxxxxx
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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/ Xxxxx Xxxxxxx
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Its President
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ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By /s/ Xxxxx Xxxxxxx
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Its President
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[SIGNATURE PAGE FOR SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
XXXXX, XXXXXXXX & COMPANY
By /s/ Xxxxx X. Xxxxx
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Its Executive Vice President
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XXXXXXXXXXX & CO., INC.
By /s/ Xxx Xxxx
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Its Assistant Secretary
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BANK OF AMERICA ILLINOIS
By /s/ Xxxxxx X. Xxxxxxx
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Its
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FINOVA CAPITAL CORPORATION
By /s/ Xxxxxxx X. Grey
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Its Group Vice President
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[SIGNATURE PAGE FOR SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
BOFA CO-INVESTORS:
*
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Xxxxxxxxxxx X. Xxxxx
*
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Xxxxxx X. Xxxxxxx
*
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M. Xxx X'Xxxxx
*
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Ford X. Xxxxxxxxx
*
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Xxxxxxx X. Xxxx
*
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Xxxxxxx X. Xxxxx
*
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Xxxxxx X. Xxxxxx
*
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Xxxxxx X. Xxxxxxx
* By: /s/ Xxxxxx X. Xxxxxxx
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Name:
Attorney-In-Fact
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[SIGNATURE PAGE FOR SECOND 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
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Its
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ENDEAVOUR CO-INVESTORS:
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
THE XXXXXXXXX FAMILY TRUST u/a/d 2-15-94
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx, Trustee
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
BABSON CAPITAL PARTNERS LIMITED
PARTNERSHIP
By /s/ Xxxxxxx X. Xxxxxx
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Its General Partner
---------------------------------
/s/ Xxx Xxxxxxx
----------------------------------------
Xxx Xxxxxxx
/s/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. XxXxx
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Xxxxx X. XxXxx
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