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Exhibit 10.12
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT (this "First Amendment") is made as of December 31, 1996 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
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 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 (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.
B. Endeavour and the Endeavour Co-Investors are the sole owners of all
of the outstanding preferred stock of Deschutes River Broadcasting Inc., an
Oregon corporation ("Deschutes"). As of August 30, 1996, the Company, Citadel
Acquisition Corporation, a Nevada corporation and wholly-owned subsidiary of
the Company ("CAC"), and Deschutes entered into that certain Merger Agreement
(the "Merger Agreement"). As of September 17, 1996, CAC changed its name to
Deschutes License, Inc. ("DLI"), and as of December 18, 1996 DLI assigned its
rights under the Merger Agreement to Deschutes Acquisition Corporation, a
Nevada corporation and wholly-owned subsidiary of the Company ("DAC"). Pursuant
to the Merger Agreement, Deschutes and DAC will merge, with DAC to be the
surviving corporation. In consideration of such merger, Endeavour, the
Endeavour Co-Investors and the holders of the Common Stock of Deschutes will
receive Class A Common Stock, Series E Preferred Stock and/or options to
purchase Class A Common Stock.
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C. In order to induce Endeavour and the Endeavour Co-Investors to
permit the transactions contemplated by the Merger Agreement, the parties to
this First Amendment wish to amend the Stockholders Agreement to grant
Endeavour and the Endeavour Co-Investors all of the rights (and make Endeavour
and the Endeavour Co-Investors subject to all of the obligations) as Investors
under the Stockholders Agreement by amending the Stockholders Agreement to make
Endeavour and the Endeavour Co-Investors parties to the Stockholders Agreement.
D. In connection with the transactions contemplated by the Merger
Agreement, the Company, Endeavour, the Endeavour Co-Investors, and certain
other parties have also agreed to enter into the following agreements, each of
even date herewith: that certain First Amendment to Third Amended and Restated
Registration Rights Agreement; that certain First Amendment to Securities
Purchase and Exchange Agreement; that certain First Amendment to Amended and
Restated Voting Agreement; and that certain Security Holder Agreement (the
"Endeavour Proxy") (together with this First Amendment, the Merger Agreement,
and the transactions contemplated thereby, the "Contemplated Transactions").
ACCORDINGLY, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this First Amendment agree as follows:
1. Consents and Waivers. Each of the parties hereto hereby consents to
this First Amendment and the inclusion of Endeavour and the Endeavour
Co-Investors as "Investors" under the Stockholders Agreement pursuant to the
terms and conditions of this First 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:
"Endeavour" shall mean and refer to The Endeavour Capital
Fund Limited Partnership, an Oregon limited partnership.
"Endeavour Co-Investors" shall mean and refer, individually
and collectively, to those individuals who are designated on
the Signature Pages to the First Amendment as the "Endeavour
Co-Investors."
"Endeavour Stock" means (i) Series E Preferred Stock held by
Endeavour or by the Endeavour Co-Investors on the date of the
First Amendment, (ii) Class A Common Stock issued or issuable
upon conversion of any Series E Preferred Stock described in
clause (i) above, (iii) Equity Securities of the Company
issued or issuable with respect to any Equity Securities
referred to in any of clauses (i)
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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. As to any
particular securities constituting Endeavour Stock, such
securities shall continue to constitute Endeavour Stock in
the hands of any permitted transferee thereof, but will cease
to constitute Endeavour Stock when they have been disposed of
in a Public Sale.
"Endeavour Underlying Common Stock" means all Endeavour Stock
which is Class A Common Stock. For purposes of this
Agreement, any Person who holds any Endeavour Stock which is
not Class A Common Stock will be deemed to be the Holder of
the Class A Common Stock obtainable upon the conversion,
exercise or exchange to the fullest extent possible of such
Endeavour Stock (including the conversion, exercise or
exchange of all other Endeavour Stock directly or indirectly
obtainable upon any such conversion, exercise or exchange),
without regard to any restriction or limitation on any such
conversion, exercise or exchange.
"First Amendment" shall mean that First Amendment to this
Agreement dated as of December ___, 1996 between the Company,
Endeavour, the Endeavour Co- Investors and certain original
parties to this Agreement.
"Majority Endeavour Holders" means, at any time, holders of a
majority of the Endeavour Underlying Common Stock.
"Series E Preferred Stock" shall mean the Series E
Convertible Preferred Stock of the Company, par value $.001
per share.
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 or Series E Preferred
Stock.
2.2.2. Affiliate. Add the following sentence at
the end of the definition:
For purposes hereof, each of Endeavour and the
Endeavour Co-Investors shall be deemed "Affiliates"
of one another.
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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 First Amendment
(immediately after the Sixth 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 and the
Endeavour Co-Investors.
2.2.5. Investor Stock. Add the following new
subsections (iv)(a) and (iv)(b) immediately following
subsection (iv) and preceding subsection (v) in the current
definition:
(iv)(a) Series E Preferred Stock held by Endeavour
or by the Endeavour Co-Investors on the date of the
First Amendment, (iv)(b) Class A Common Stock issued
or issuable upon conversion of any Series E
Preferred Stock described in clause (iv)(a) above,
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 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 and (d) the
Majority Endeavour Holders.
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2.2.8. Stockholder and Stockholders. The current
definition is deleted and replaced with:
"Stockholder" and "Stockholders" shall mean the
Investors, FINOVA and Management.
2.3. Section 7.15 of the Stockholders Agreement is amended by
deleting the current 7.15 and replacing it with the following:
7.15 Action on behalf of Co-Investors. Each of the
parties hereto agrees that:
(a) Bank, 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 Bank Co-Investors for all
Stockholders Shares initially issued to the Bank
Co-Investors; and
(b) Endeavour, 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 Endeavour Co-Investors for all
Stockholders Shares initially issued to the Endeavour
Co-Investors.
2.4. Schedule A of the Stockholders Agreement is amended to
include the Endeavour and the Endeavour Co-Investors as set forth in
the First Addendum to Schedule A of the Second Amended and Restated
Stockholders Agreement, a copy of which is attached to this First
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 7.17 is added to
Section 7 of the Stockholders Agreement:
7.17 Incorporation of Recitals. The Recitals set
forth in the First Amendment are incorporated
herein.
3. Notice. All notices and other communications provided for or
permitted under the Registration Rights Agreement shall be made pursuant to
Section 12(d) thereof to Endeavour and the Endeavour Co-Investors at the
following initial addresses:
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To Endeavour: The Endeavour Capital Fund Limited Partnership
0000 XX Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxx xxx Xxxxxxxxx
Facsimile: (000) 000-0000
With copy to: Xxxxxxx X. Xxxxxx, Esq.
Stoel Rives, LLP
000 X.X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
To Endeavour
Co-Investors: The Endeavour Capital Fund Limited Partnership
0000 XX Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxx xxx Xxxxxxxxx
Facsimile: (000) 000-0000
With copy to: Xxxxxxx X. Xxxxxx, Esq.
Stoel Rives, LLP
000 X.X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
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 First 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 First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
6. Fees and Expenses. The Company shall pay the reasonable legal fees
and expenses of the Investors (excluding Endeavour and the Endeavour
Co-Investors) incurred in the preparation of this First Amendment, review of
the documents and agreements in connection with
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the transactions described in the Recital hereof and the preparation of
additional documents and agreements related to such transactions.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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[SIGNATURE PAGE FOR FIRST AMENDMENT TO SECOND AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT]
CITADEL COMMUNICATIONS CORPORATION
By /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Its
--------------------------------
/s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
(for purposes of Section 4(a) of the Registration
Rights Agreement only)
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx
(for purposes of Section 4(a) of the Registration
Rights Agreement only)
ABRY BROADCAST PARTNERS II, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By /s/ Xxxxx Xxxxxxx
-------------------------------------
Its
--------------------------------
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
-------------------------------------
Its
--------------------------------
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[SIGNATURE PAGE FOR FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT]
XXXXX, XXXXXXXX & COMPANY
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Its Executive Vice President
----------------------------------
XXXXXXXXXXX & CO., INC.
By
-------------------------------------
Its
----------------------------------
BANK OF AMERICA ILLINOIS
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Its
----------------------------------
FINOVA CAPITAL CORPORATION
By /s/ Xxxxxxx X. Grey
-------------------------------------
Its Group Vice President
----------------------------------
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[SIGNATURE PAGE FOR FIRST 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 FIRST 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 X. Xxxxx
-------------------------------------
Its Chairman
----------------------------------
ENDEAVOUR CO-INVESTORS:
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
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
-------------------------------------
Its General Partner
---------------------------------
/s/ Xxx Xxxxxxx
----------------------------------------
Xxx Xxxxxxx
/s/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. XxXxx
----------------------------------------
Xxxxx X. XxXxx
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EXHIBIT A
FIRST ADDENDUM TO SCHEDULE A OF THE SECOND
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SHARES OF CLASS A
COMMON STOCK ON
NAME SHARES A
---- ------ FULLY DILUTED BASIS
-------------------
The Endeavour Capital Fund Limited 418,612 shares of Series E 418,612
Partnership Preferred Stock
Attn: Xxxx xxx Xxxxxxxxx
0000 XX Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
With copy (which will not constitute
notice) to:
Xxxxxxx X. Xxxxxx, Esq.
Stoel Rives, LLP
000 X.X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
If any of: 32,700
----------
Xxxxxx X. Xxxxxxx 32,700 Shares of Series E
937 SW 14th, Suite 200 Preferred Stock
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
The Xxxxxxxxx Family Trust U/a/d 9,894 Shares of Series E 9,894
2-15-94 Preferred Stock
c/o Xxxxxxx X. Xxxxxxxxx
0000 X. Xxxxxxxx
Xxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Babson Capital Partners Limited 3,956 Shares of Series E 3,956
Partnership Preferred Stock
c/o Xxxxxxx X. Xxxxxx
000 XX Xxxxx Xxx., Xxxxx 0000
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
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Xxx Xxxxxxx 1,977 Shares of Series E 1,977
0000 XX 0xx Xxx. Preferred Stock
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxx 12,029 Shares of Series E 12,029
Deschutes River Broadcasting, Inc. Preferred Stock
0000 XX Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxx X. XxXxx 3,561 Shares of Series E 3,561
000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
With copy (which will not constitute
notice) to:
Xxxxxxx X. Xxxxxx, Esq.
Stoel Rives, LLP
000 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
TOTAL (this Addendum only): 482,729
