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Exhibit 10.24
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, Xxxxxxxx X. Xxxxxx and Xxxxxx Xxxxxx
(collectively, "Xxxxxx").
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
As used in this Agreement, the following capitalized terms
shall have the following meanings:
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"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 Xxxxx, Xxxxxxxx & 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.
"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
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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.
"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 Xxxxxxxxxxx & Co., Inc., a Delaware
corporation.
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"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);
(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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(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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"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.
(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.
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(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.
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.
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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.
(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; Xxxxxx
Upon the written request of the managing underwriter of any
underwritten offering of the Company's securities, neither Xxxxxx 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. Xxxxxxxx X. Xxxxxx 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:
(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
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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,
(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 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
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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;
(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
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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 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
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(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
Xxxxxx 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.
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
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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 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
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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.
(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
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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.
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
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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.
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:
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(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.
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(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
(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 Xxxxxx Xxxxxxx, P.A., 2929 North
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Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxxxx X.
Xxxxxxx, 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.
(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.
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(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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CITADEL COMMUNICATIONS CORPORATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
------------------------------------
Xxxxxxxx X. Xxxxxx
(for purposes of Section 4(a) only)
------------------------------------
Xxxxxx Xxxxxx
(for purposes of Section 4(a) only)
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INVESTOR SIGNATURE PAGES
XXXXX, XXXXXXXX & 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:
--------------------------
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By: ABRY CAPITAL, L.P.
Its General Partner
By: ABRY HOLDINGS, INC.
Its General Partner
By:
----------------------------------
Name:
---------------------------
Title:
--------------------------
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XXXXXXXXXXX & CO., INC.
By:
----------------------------------
Name:
---------------------------
Title:
--------------------------
BANK OF AMERICA ILLINOIS
By:
----------------------------------
Name:
---------------------------
Title:
--------------------------
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BofA Co-Investors:
*
--------------------------------
Xxxxxxxxxxx X. Xxxxx
*
--------------------------------
Xxxxxx X. Xxxxxxx
*
--------------------------------
M. Xxx X'Xxxxx
*
--------------------------------
Ford X. Xxxxxxxxx
*
--------------------------------
Xxxxxxx X. Xxxx
*
--------------------------------
Xxxxxxx X. Xxxxx
*
--------------------------------
Xxxxxx X. Xxx Xxxx, Xx.
*By:
----------------------------
Name:
Attorney-in-Fact
25
