Exhibit 2
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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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
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As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ABRY/CIP" shall mean ABRY/Citadel Investment Partners, L.P., a
Delaware limited partnership.
"Additional Preferred Stock" shall mean any additional series of
preferred stock issued by the Company other than the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock.
"BFC" shall mean 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.
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"Conversion Stock" means all Investor Stock which is Common Stock. For
purposes of this Agreement, any Person who holds any Investor Stock which is not
Common Stock will be deemed to be the Holder of the Common Stock obtainable upon
the conversion, exercise or exchange to the fullest extent possible of such
Investor Stock (including the conversion, exercise or exchange of all other
Investor Stock directly or indirectly obtainable upon any such conversion,
exercise or exchange), without regard to any restriction or limitation on any
such conversion, exercise or exchange; provided that no Holder of any Facility A
Note (as that term is defined in the Securities Purchase and Exchange
Agreement), on or prior to the Maturity Date (as that term is defined in such
Facility A Note) of such Facility A Note, shall be deemed to be the Holder of
any such Common Stock by reason of holding such Facility A Note.
"Demand Registration" shall mean a registration pursuant to Section 2
hereof.
"Equity Securities" of any Person means (i) any capital stock,
partnership, membership, joint venture or other ownership or equity interest,
participation or securities (whether voting or non-voting, whether preferred,
common or otherwise, and including any stock appreciation, contingent interest
or similar right) and (ii) any option, warrant, security or other right
(including debt securities) directly or indirectly convertible into or
exercisable or exchangeable for, or otherwise to acquire directly or indirectly,
any stock, interest, participation or security described in clause (i) above.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
"Firm Commitment Underwritten Offering" shall mean an offering in
which the underwriters agree to purchase securities for distribution pursuant to
a registration statement under the Securities Act and in which the obligation of
the underwriters is to purchase all the securities being offered if any are
purchased.
"Holder" shall mean the beneficial owner of a security. For all
purposes of this Agreement, the Company shall be entitled to treat the record
owner of a security as the beneficial owner of such security unless it has been
given written notice of the existence and identity of a different beneficial
owner.
"Indemnified Holders" shall mean any Holder of Restricted Stock, any
officer, director, employee or agent of any such Holder and any Person who
controls any such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act.
"Investor Stock" has the meaning set forth in the Securities Purchase
and Exchange Agreement.
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"Misstatement" shall mean an untrue statement of a material fact or an
omission to state a material fact required to be stated in a Registration
Statement or Prospectus or necessary to make the statements in a Registration
Statement, Prospectus or preliminary prospectus not misleading.
"OPCO" shall mean Xxxxxxxxxxx & Co., Inc., a Delaware corporation.
"Person" shall mean all natural persons, corporations, business
trusts, limited liability companies, associations, companies, partnerships,
joint ventures, governments, agencies, political subdivisions and other
entities.
"Piggyback Registration" shall mean a registration pursuant to Section
3 hereof.
"Preferred Stock" shall mean the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Additional Preferred Stock, collectively.
"Previous Investors" shall mean BofA, the BofA Co-Investors, BFC and
OPCO.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated
by reference in such prospectus.
"Qualified Public Offering" means the closing of the issuance and sale
of Common Stock in an underwritten public offering which is registered pursuant
to the Securities Act and which results in the receipt by the Company of cash
proceeds of at least $25,000,000 (net of applicable commissions, discounts and
expenses).
"Registration" shall mean a Demand Registration or a Piggyback
Registration.
"Registration Expenses" shall mean the out-of-pocket expenses of a
Registration, including:
(a) all registration and filing fees (including fees with respect to
filing required to be made with the National Association of Securities Dealers);
(b) fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters or selling
Holders in connection with blue sky qualifications of the Restricted Stock and
determinations of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders of a majority of the
Restricted Stock being sold may designate);
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(c) printing, messenger, telephone and delivery expenses;
(d) fees and disbursements of counsel for the Company, counsel for the
underwriters and of not more than one firm of attorneys for the sellers of the
Restricted Stock selected by the Holders which own a majority of the Restricted
Stock which is requested to be included in such Registration;
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(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.
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(b) Number of Demand Registrations
The Company shall be obligated to prepare, file and cause to become
effective, pursuant to this Section 2, one Registration Statement in connection
with which the Company will bear all Registration Expenses. If (i) the Company
withdraws a Registration Statement filed pursuant to a Demand Registration prior
to the effectiveness thereof, (ii) the sale of securities to which a
Registration Statement filed pursuant to a Demand Registration applies is not
consummated because of the failure of the Company to comply with the provisions
of Section 5 hereof, or (iii) upon the consummation of a sale of securities to
which a Registration Statement filed pursuant to a Demand Registration applies,
less than 80% of the securities requested to be registered for sale thereunder
is sold, such Registration Statement shall not be counted as the one Demand
Registration in connection with which the Company will bear all Registration
Expenses or otherwise adversely affect such Holder's rights hereunder.
(c) Required Thresholds
The Company shall not be obligated to prepare, file and cause to
become effective pursuant to this Section 2 a Registration Statement unless the
proposed aggregate number of shares of Conversion Stock to be included in such
Demand Registration equals the greater of (i) at least 25% of the outstanding
shares of Conversion Stock and (ii) such number of shares, the sale of which
would result in aggregate net proceeds in excess of $3,000,000, based on the
mid-point of the range of offering prices proposed by the Holders making the
request pursuant to Section 2(a).
(d) Participation
The Company shall promptly give written notice to all Holders of
Restricted Stock upon receipt of a request for a Demand Registration pursuant to
Section 2(a) above. The Company shall include in such Demand Registration such
shares of Restricted Stock for which it has received written requests to
register such shares within 30 days after such written notice has been given.
(e) Underwriter's Cutback
If the public offering of Restricted Stock is to be underwritten and,
in the good faith judgment of the managing underwriter, the inclusion of all the
Restricted Stock requested to be registered hereunder would interfere with the
successful marketing of a smaller number of such shares of Restricted Stock, the
number of shares of Restricted Stock to be included shall be reduced to such
smaller number with the participation in such offering to be pro rata among the
Holders of Restricted Stock requesting such registration, based upon the number
of shares of Restricted Stock owned by such Holders.
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Any shares that are thereby excluded from the offering shall be
withheld from the market by the Holders thereof for a period (not to begin more
than 30 days prior to the proposed effective date nor continue for more than 90
days thereafter) that the managing underwriter reasonably determines is
necessary in order to effect the underwritten pubic offering.
The Company and, subject to the requirements of Section 11 hereof,
other Holders of applicable securities of the Company may include such
securities in such Registration if, but only if, the managing underwriter
concludes that such inclusion will not interfere with the successful marketing
of all the Restricted Stock requested to be included in such registration.
(f) Managing Underwriter
The managing underwriter or underwriters of any underwritten public
offering covered by a Demand Registration shall be selected by the Holders of a
majority of the shares of Restricted Stock that initiate such registration,
subject to the approval of the Board of Directors, which shall not be
unreasonably withheld.
3. Piggyback Registrations
(a) Participation
Each time the Company decides to file a registration statement under
the Securities Act (other than on Forms S-4 or S-8 or pursuant to Section 2
hereof) covering the offer and sale by the Company or any of its respective
security holders of any of its securities for money, the Company shall give
written notice thereof to all Holders of Restricted Stock. The Company shall
include in such registration statement such shares of Restricted Stock for which
it has received written requests to register such shares within 30 days after
such written notice has been given. If the registration statement is to cover an
underwritten offering, such Restricted Stock shall be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters.
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(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
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(a) By Holders of Restricted Stock; Xxxxxx
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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
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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
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If and whenever the Company is required to register Restricted Stock
in a Demand Registration or a Piggyback Registration, the Company will use its
best efforts to effect such registration to permit the sale of such Restricted
Stock in accordance with the intended plan of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible:
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(a) prepare and file with the Commission as soon as practicable a
Registration Statement with respect to such Restricted Stock and use its best
efforts to cause such Registration Statement to become effective and remain
effective until the Restricted Stock covered by such Registration Statement has
been sold; provided that the registrant shall not be required to maintain the
effectiveness of any Registration Statement not covering an underwritten public
offering for more than 90 days after such registration statement becomes
effective; and further provided that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, the registrant shall
furnish to the Holders of the Restricted Stock covered by such Registration
Statement and the underwriters, if any, draft copies of all such documents
proposed to be filed, which documents will be subject to the review of such
Holders and underwriters, and the registrant shall not file any Registration
Statement of amendment thereto or any Prospectus or any supplement thereto to
which the Holders of a majority of the Restricted Stock covered by such
Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement, and such supplements to the
Prospectus, as may be requested by any Holder of Restricted Stock or any
underwriter of Restricted Stock or as may be required by the rules, regulations
or instructions applicable to the registration form used by the registrant or by
the Securities Act or rules and regulations thereunder to keep the Registration
Statement effective until all shares of Restricted Stock covered by such
Registration Statement are sold in accordance with the intended plan of
distribution set forth in such Registration Statement or supplement to the
Prospectus or for such shorter period of time during which such Registration
Statement must be kept effective by the terms of this Agreement;
(c) promptly notify the applicable selling Holders of Restricted Stock
and the managing underwriter, if any, and (if requested by any such Person)
confirm such advice in writing:
(1) when the Prospectus or any supplement or post-effective amendment
has been filed, and, with respect to the Registration Statement or any post-
effective amendment, when the same has become effective,
(2) of any request by the Commission for amendments or supplements to
the Registration Statement, the Prospectus or for additional information,
(3) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose,
(4) if at any time the representations and warranties of the Company
contemplated by clause (1) of paragraph (o) below cease to be accurate in all
material respects,
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(5) of the receipt by the registrant of any notification with respect
to the suspension of the qualification of the Restricted Stock for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and
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(6) of the existence of any fact which results in the Registration
Statement, the Prospectus or any document incorporated therein by reference
containing a Misstatement;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible time;
(e) if requested by the managing underwriter or a Holder of Restricted
Stock being sold in connection with an underwritten offering, immediately
incorporate in a supplement or post-effective amendment such information as the
managing underwriter and the Holders of a majority of the shares of Restricted
Stock being sold agree should be included therein relating to the sale of the
Restricted Stock, including, without limitation, information with respect to the
number of shares of Restricted Stock being sold to underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the underwritten offering of the Restricted Stock to be sold in such
offering; and make all required filings of such supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
supplement or post-effective amendment;
(f) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement) provide copies of such
document to counsel to the selling Holders of Restricted Stock and to the
managing underwriter, if any, and make the registrant's representatives
available for discussion of such document and make such changes in such document
prior to the filing thereof as counsel for such selling Holders or underwriters
may be reasonably request;
(g) furnish to each selling Holder of Restricted Stock and the
managing underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(h) deliver to each selling Holder of Restricted Stock and the
underwriters, if any, without charge, as many copies of each Prospectus (and
each preliminary prospectus) as such Persons may reasonably request (the Company
hereby consenting to the use of each such Prospectus (or preliminary prospectus)
by each of the selling Holders of Restricted Stock and the underwriters, if any,
in connection with the offering and sale of the Restricted Stock covered by such
Prospectus (or preliminary prospectus));
(i) prior to any public offering of Restricted Stock, register or
qualify or cooperate with the selling Holders of Restricted Stock, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification of such Restricted Stock for
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offer and sale under the securities or blue sky laws of such jurisdictions as
such selling Holders or underwriters may designate in writing and do anything
else reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Restricted Stock covered by the Registration Statement;
provided that the registrant shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(j) cooperate with the selling Holders of Restricted Stock and the
managing underwriter, if any, to facilitate the timely preparation and delivery
of certificates not bearing any restrictive legends representing the Restricted
Stock to be sold and cause such Restricted Stock to be in such denominations and
registered in such names as the managing underwriter may request at least three
business days prior to any sale of Restricted Stock to the underwriters;
(k) use its best efforts to cause the Restricted Stock covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of
such Restricted Stock;
(l) if the Registration Statement or the Prospectus contains a
Misstatement, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Restricted Stock, the Prospectus will not
contain a Misstatement;
(m) use its best efforts to cause all Restricted Stock covered by the
Registration Statement to be listed on any national securities exchange or
authorized for quotation on the Nasdaq National Market System, if requested by
the Holders of a majority of such Restricted Stock or the managing underwriter,
if any;
(n) provide a CUSIP number for all Restricted Stock not later than the
effective date of the Registration Statement;
(o) enter into such agreements (including an underwriting agreement)
and do anything else reasonably necessary or advisable in order to expedite or
facilitate the disposition of such Restricted Stock, and in such connection,
whether or not the registration is an underwritten registration:
(1) make such representations and warranties to the Holders of
such Restricted Stock and the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in primary underwritten
offerings;
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(2) obtain opinions of counsel to the registrant and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriter, if any, and the Holders of
a majority of the Restricted Stock being sold) addressed to each selling Holder
and the underwriter, if any, covering the matters customarily covered in
opinions delivered to underwriters in primary underwritten offerings and such
other matters as may be reasonably requested by such Holders or underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
registrant's independent certified public accountants addressed to the selling
Holders of Restricted Stock and the underwriters, if any, such letter to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with primary underwritten
offerings;
(4) if an underwriting agreement is entered into, cause the same
to include the indemnification and contribution provisions and procedures of
Section 7 hereof with respect to all parties to be indemnified pursuant to said
Section (or, with respect to the indemnification of such underwriters, such
similar indemnification and contribution provisions as such underwriters shall
customarily require); and
(5) deliver such documents and certificates as may be requested
by the Holders of a majority of the Restricted Stock being sold and the managing
underwriter, if any, to evidence compliance with clause (i) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the registrant.
The above shall be done at each closing under such underwriting
or similar agreement or as and to the extent otherwise reasonably requested by
the Holders of a majority of the Restricted Stock being sold;
(p) make available for inspection by representatives of the Holders of
a majority of the Restricted Stock being sold, any underwriter participating in
any disposition pursuant to such Registration Statement, and any attorney or
accountant retained by the sellers or any such underwriter, all financial and
other records and pertinent corporate documents and properties of the
registrant, and cause the registrant's officers, directors and employees to
supply all information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with the Registration;
provided that any records, information or documents that are designated by the
registrant in writing as confidential shall be kept confidential by such Persons
unless disclosure of such records, information or documents is required by court
or administrative order;
(q) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security
holders earning statements satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days
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after the end of any 12-month period (or 90 days, if such period is a fiscal
year) (x) commencing at the end of any fiscal quarter in which Restricted Stock
are sold to underwriters in an underwritten offering, or, if not sold to
underwriters in such an offering, (y) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said 12-month periods; and
(r) use its best efforts to cause the Company's management to
participate fully in the sale process, including, without limitation, the
preparation of the Registration Statement and the preparation and presentation
of any "road shows," whether domestic or international, and for so long as
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
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(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.
-17-
7. Indemnification
----------------
(a) Indemnification by the Company
-------------------------------
The Company (the "Indemnifying Party") agrees to indemnify and hold
harmless each Indemnified Holder from and against all Claims arising out of or
based upon any Misstatement or alleged Misstatement, except insofar as such
Misstatement or alleged Misstatement was based upon information furnished in
writing to the registrant by such Indemnified Holder expressly for use in the
document containing such Misstatement or alleged Misstatement. This indemnity
shall not be exclusive and shall be in addition to any liability which the
Company may otherwise have.
The foregoing notwithstanding, the Indemnifying Party shall not be
liable to the extent that any such Claim arises out of or is based upon a
Misstatement or alleged Misstatement made in any preliminary prospectus if (i)
such Indemnified Holder failed to send or deliver a copy of the Prospectus with
or prior to the delivery of written confirmation of the sale of
-18-
Restricted Stock giving rise to such Claim and (ii) the Prospectus would have
corrected such untrue statement or omission.
In addition, the Indemnifying Party shall not be liable to the extent
that any such Claim arises out of or is based upon a Misstatement or alleged
Misstatement in a Prospectus, (x) if such Misstatement or alleged Misstatement
is corrected in an amendment or supplement to such Prospectus and (y) having
previously been furnished by or on behalf of the Indemnifying Party with copies
of the Prospectus as so amended or supplemented, such Indemnified Holder
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale to the person who purchased the Restricted
Stock from such Indemnified Holder and who is asserting such Claim.
The Indemnifying Party shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in a distribution covered by a Registration Statement, their
officers and directors and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to the indemnification of the
Indemnified Holders of Restricted Stock.
(b) Indemnification Procedures
--------------------------
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against an Indemnified Holder in
respect of which indemnity may be sought from the Indemnifying Party, such
Indemnified Holder shall promptly notify the Indemnifying Party in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel satisfactory to such Indemnified Holder and the payment of
all expenses.
Such Indemnified Holder shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such separate counsel shall be the expense of such
Indemnified Holder unless (i) the Indemnifying Party has agreed to pay such fees
and expenses, (ii) the Indemnifying Party shall have failed to assume the
defense of such action or proceeding or has failed to employ counsel
satisfactory to such Indemnified Holder in any such action or proceeding or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Holder and the Indemnifying
Party, and such Indemnified Holder shall have been advised by counsel that there
may be one or more legal defenses available to such Indemnified Holder that are
different from or additional to those available to the Indemnifying Party.
If such Indemnified Holder notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party as permitted by the provisions of the preceding paragraph, the
Indemnifying Party shall not have the right to assume
-19-
the defense of such action or proceeding on behalf of such Indemnified Holder.
The foregoing notwithstanding, the Indemnifying Party shall not be liable for
the reasonable fees and expenses of more than one separate firm of attorneys at
any time for such Indemnified Holder and any other Indemnified Holders (which
firm shall be designated in writing by such Indemnified Holders) in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances.
The Indemnifying Party shall not be liable for any settlement of any
such action or proceeding effected without its written consent, but if settled
with its written consent, or if there be a final judgment for the plaintiff in
any such action or proceeding, the Indemnifying Party agrees to indemnify and
hold harmless such Indemnified Holders from and against any loss or liability by
reason of such settlement or judgment.
(c) Indemnification by Holder of Restricted Stock
---------------------------------------------
Each Holder of Restricted Stock agrees to indemnify and hold harmless
the Company, their respective directors and officers and each Person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Indemnified Party to such Holder, but only with
respect to information relating to such Holder furnished in writing by such
Holder expressly for use in any Registration Statement, Prospectus or
preliminary prospectus. In no event, however, shall the liability hereunder of
any selling Holder of Restricted Stock be greater than the dollar amount of the
proceeds received (net of underwriting commissions and discounts) by such Holder
upon the sale of the Restricted Stock giving rise to such indemnification
obligation.
In case any action or proceeding shall be brought against the Company
or its directors or officers or any such controlling person, in respect of which
indemnity may be sought against a Holder of Restricted Stock, such Holder shall
have the rights and duties given the Company or its directors of officers and
such controlling person shall have the rights and duties given to each Holder by
Section 7(a) and 7(b) above.
The Company shall be entitled to received indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement.
-20-
(d) Contribution
------------
If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under Section 7(a) or Section 7(c) above (other than by
reason of exceptions provided in those Sections) in respect of any Claims
referred to in such Sections, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Claims in such proportion
as is appropriate to reflect the relative fault of the Company on the one hand
and of the Indemnified Holder on the other in connection with the statements or
omissions which resulted in such Claims as well as any other relevant equitable
considerations. The amount paid or payable by a party as a result of the Claims
referred to above shall be deemed to include, subject to the limitations set
forth in Section 7(b), any legal or other fees or expenses reasonably incurred
by such party in connection investigating or defending any action or claim.
The relative fault of the Company on the one hand and of the
Indemnified Holder on the other shall be determined by reference to, among other
things, whether the Misstatement or alleged Misstatement related to information
supplied by the Company or by the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Misstatement or alleged Misstatement.
The Company and each Holder of Restricted Stock agree that it would
not be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7(d), an Indemnified
Holder shall not be required to contribute any amount in excess of the amount by
which (i) the total price (net of underwriting commissions and discounts) at
which the securities that were sold by such Indemnified Holder and distributed
to the public were offered to the public exceeds (ii) the amount of any damages
which such Indemnified Holder has otherwise been required to pay by reason of
such Misstatement.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
-21-
8. Exchange Act Reporting Requirements
-----------------------------------
When it is first legally required to do so, the Company shall register
its Common Stock under Section 12 of the Exchange Act and shall timely file such
information, documents and reports as the Commission may require or prescribe
under Section 13 of the Exchange Act. From and after the effective date of the
first registration statement filed by the Company under the Securities Act, the
Company shall (whether or not it shall then be required to do so) timely file
such information, documents and reports as the Commission may require or
prescribe under Section 13 or 15(d) (whichever is applicable) of the Exchange
Act. In addition, the Company shall take such other measures and file such
other information, documents and reports, as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any successor provision) and the use of Form S-3.
Immediately upon becoming subject to the reporting requirements of
either Section 13 or 15(d) of the Exchange Act, the Company shall forthwith upon
request furnish any Holder of applicable Restricted Stock (i) a written
statement by the Company that it has complied with such reporting requirements,
(ii) a copy of the most recent annual or quarterly report of the Company and
(iii) such other reports and documents filed by the Company with the Commission
as such Holder may reasonably request in availing itself of an exemption for the
sale of Restricted Stock without registration under the Securities Act.
The purpose of the foregoing requirements are (x) to enable any such
Holder to comply with the current public information requirements contained in
paragraph (c) of Rule 144 under the Securities Act (or any successor provision)
and (y) to qualify the Company for the use of registration statements on Form S-
3.
9. Requirements for Participation in Underwritten Offerings
--------------------------------------------------------
No Person may participate in any underwritten offering pursuant to a
Registration hereunder unless such Person (a) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
-22-
10. Suspension of Sales
-------------------
Upon receipt of written notice from the Company that a Registration
Statement or Prospectus contains a Misstatement, each Holder of Restricted Stock
shall forthwith discontinue disposition of Restricted Stock until such Holder
has received copies of the supplemented or amended Prospectus required by
Section 5(1) hereof, or until such Holder is advised in writing by the
registrant that the use of the Prospectus may be resumed, and, if so directed by
the registrant, such Holder shall deliver to the registrant (at the registrant's
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Restricted Stock current at the time
of receipt of such notice. In the event the registrant shall give any such
notice, the 90-day period referred to in Section 5(a) hereof shall be extended
by the number of days during the period from and including the date of the
giving of such notice to and including the date when each seller of Restricted
Stock covered by such Registration Statement either has received the copies of
the supplemented or amended prospectus contemplated by Section 5(1) hereof or
has been advised in writing by the registrant that the use of the Prospectus may
be resumed.
11. Future Registration Rights Agreements
-------------------------------------
Except for an underwriting agreement between the Company and one or
more professional underwriters of securities, the Company shall not agree to
register any Equity Securities under the Securities Act unless such agreement
specifically provides that:
-23-
(a) the Holder of such Equity Securities may not participate in any
Demand Registration without the consent of the Holders of a majority of the
shares of the Restricted Stock included in such registration unless:
(1) the offering of the Restricted Stock is to be a Firm Commitment
Underwritten Offering and the managing underwriter concludes that the public
offering or sale of such Equity Securities would not interfere with the
successful marketing of all Restricted Stock requested to be sold and
(2) the Holders of Restricted Stock shall have the right to
participate, to the extent they may request, in any registration statement
initiated under a demand registration right exercised by the Holder of such
Equity Securities, except that if the managing underwriter of a public offering
made pursuant to such demand registration limits the number of shares of Equity
Securities to be sold, the participation of the Holders of the Restricted Stock
and the Holders of all other Equity Securities (other than the Equity Securities
held by such Holder of Equity Securities) shall be determined as set forth in
Section 3 hereof;
(b) the holder of such Equity Securities may not participate in any
Piggyback Registration if the sale of Restricted Stock is to be underwritten
unless, if the managing underwriter limits the total number of shares to be
sold, the Holders of such Equity Securities and the Holder of Restricted Stock
are entitled to participate in such underwritten distribution based on the order
of priority set forth in Section 3 hereof, and
(c) all Equity Securities excluded from any Registration as a result
of the foregoing limitations may not be publicly offered or sold for a period
(not to exceed at least 30 days prior to the effective date and 90 days
thereafter) that the managing underwriter reasonably determined is necessary in
order to effect the underwritten public offering of Restricted Stock registered
pursuant to this Agreement.
12. Miscellaneous
-------------
(a) Remedies
--------
Each Holder of Restricted Stock, in addition to being entitled to
exercise all rights provided herein, and granted by law, including recovery of
damages, shall be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
-24-
(b) Agreements; Entire Agreement
----------------------------
The Company shall not on or after the date of this Agreement enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders of Restricted Stock in this Agreement or otherwise
conflicts with the provisions hereof.
Except for the Registration Rights Agreement dated May 3, 1993, the
Amended and Restated Registration Rights Agreement dated May 28, 1993 and the
Second Amended and Restated Registration Rights Agreement dated October 1, 1993
(collectively, the "Prior Agreements"), the Company has not previously entered
into any agreement with respect to its securities granting any registration
rights to any Person. This Agreement constitutes the entire agreement among the
parties and supersedes any prior understandings, agreements or representations
by or among the parties, written or oral, that may have related in any way to
the subject matter hereof, including, without limitation, the Prior Agreements.
(c) Amendments and Waivers
----------------------
The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company has
obtained the written consent of the Holders of at least 66% of the outstanding
shares of Restricted Stock; provided, that for so long as BofA or BFC holds any
Restricted Stock any waiver or amendment that would (i) nullify the underlying
purpose of this Agreement or (ii) adversely affect BFC or BofA, as the case may
be, vis a vis the other Investors on a proportionate basis shall not be made
without the prior written consent of BFC or BofA as applicable. The foregoing
notwithstanding, a waiver or consent to departure from the provisions hereof
that relates exclusively to the rights of Holders of shares of Restricted Stock
whose shares are being sold pursuant to a Registration Statement and that does
not directly or indirectly affect the rights of other Holders of shares of
Restricted Stock may be given by the Holders of a majority of the shares of
Restricted Stock being sold.
(d) Notices
-------
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder of Restricted Stock, at the most current address
given by such Holder to the Company in accordance with the provisions hereof,
which address initially is, with respect to each Investor, the address set forth
on Schedule A to the Stockholders Agreement; and
-25-
(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., 0000 Xxxxx 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.
-26-
(i) Severability
In the event that only one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(j) Forms
All references in this Agreement to particular forms of registration
statements are intended to include all successor forms which are intended to
replace, or to apply to similar transactions as, the forms herein referenced.
* * * *
SIGNATURE PAGES TO THIRD AMENDED AND
RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CITADEL COMMUNICATIONS CORPORATION
By:________________________________
Name:___________________________
Title:__________________________
___________________________________
Xxxxxxxx X. Xxxxxx
(for purposes of Section 4(a) only)
___________________________________
Xxxxxx Xxxxxx
(for purposes of Section 4(a) only)
-27-
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:____________________________
-28-
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By: ABRY CAPITAL, L.P.
Its General Partner
By: ABRY HOLDINGS, INC.
Its General Partner
By:_________________________________
Name:____________________________
Title:___________________________
XXXXXXXXXXX & CO., INC.
By:_________________________________________
Name:____________________________________
Title:___________________________________
BANK OF AMERICA ILLINOIS
By:_________________________________________
Name:____________________________________
Title:___________________________________
-29-
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
-30-
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED
---------------------------------------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "First Amendment") is made as of December ___, 1996 by and among
Citadel Communications Corporation, a Nevada corporation (the "Company"); The
Endeavour Capital Fund Limited Partnership, an Oregon limited partnership
("Endeavour"); the investors whose names are designated on the Signature Pages
to this First Amendment as "Endeavour Co-Investors" (the "Endeavour Co-
Investors"); the investors whose names are listed on the Investor Signature
Pages (herein referred to collectively as the "Original Investors" and
individually as an "Original Investor") of that certain Third Amended and
Restated Registration Rights Agreement dated as of June 28, 1996 (the
"Registration Rights Agreement") between the Company, the Original Investors
and, with respect to section 4(a) of the Registration Rights Agreement, Xxxxxxxx
X. Xxxxxx and Xxxxxx Xxxxxx (collectively, "Xxxxxx"); and Xxxxxx. Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Registration Rights Agreement.
RECITALS
A. As of June 28, 1996, the Company and the Investors entered into that
certain Securities Purchase and Exchange Agreement (the "Securities Purchase and
Exchange Agreement"). In connection with the execution of the Securities
Purchase and Exchange Agreement, the Company, the Investors and Xxxxxx executed
the Registration Rights Agreement.
B. Endeavour and the Endeavour Co-Investors are the sole owners of all of
the outstanding preferred stock of Deschutes River Broadcasting Inc., an Oregon
corporation ("Deschutes"). As of August 30, 1996, the Company, Citadel
Acquisition Corporation, a Nevada corporation and wholly-owned subsidiary of the
Company ("CAC"), and Deschutes entered into that certain Merger Agreement (the
"Merger Agreement"). As of September 17, 1996, CAC changed its name to Deschutes
License, Inc. ("DLI"), and as of December 18, 1996 DLI assigned its rights under
the Merger Agreement to Deschutes Acquisition Corporation, a Nevada corporation
and wholly-owned subsidiary of the Company ("DAC"). Pursuant to the Merger
Agreement, Deschutes and DAC will merge, with DAC to be the surviving
corporation. In consideration of such merger, Endeavour, the Endeavour Co-
Investors and the holders of the Common Stock of Deschutes will receive Class A
Common Stock, Series E Preferred Stock and/or options to purchase Class A Common
Stock.
C. In order to induce Endeavour and the Endeavour Co-Investors to permit
the transactions contemplated by the Merger Agreement, the Company, the Original
Investors, and Xxxxxx wish to amend the Registration Rights Agreement to grant
registration rights to Endeavour and the Endeavour Co-Investors to the same
extent as the Original Investors under the Registration Rights Agreement.
D. In connection with the transactions contemplated by the Merger
Agreement, the Company, Endeavour, the Endeavour Co-Investors, and certain other
parties have also agreed to enter into the following agreements, each dated as
of the date hereof: that certain First
Amendment to Second Amended and Restated Stockholders Agreement; that certain
First Amendment to Securities Purchase and Exchange Agreement; that certain
First Amendment to Amended and Restated Voting Agreement; and that certain
Security Holder Agreement (the "Endeavour Proxy") (together with this First
Amendment, the Merger Agreement, and the transactions contemplated thereby, the
"Contemplated Transactions").
ACCORDINGLY, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this First Amendment agree as follows:
1. Consents and Waivers. The Original Investors hereby consent to this
First Amendment and inclusion of Endeavour and the Endeavour Co-Investors as
"Investors" under the Registration Rights Agreement. Further, Original Investors
waive any rights they may have pursuant to Section 11 of the Registration Rights
Agreement in connection with the Contemplated Transactions.
2. Amendments.
(a) Section 1 of the Registration Rights Agreement is amended by deleting
the definitions of "Additional Preferred Stock" and "Preferred Stock" and adding
the following definitions in appropriate alphabetical order:
"Additional Preferred Stock" shall mean any additional shares
of preferred stock issued by the Company other than the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock or Series E Preferred Stock.
"Endeavour" shall mean and refer to Endeavour Capital Fund
Limited Partnership, an Oregon limited partnership.
"Endeavour Co-Investors" shall mean and refer, individually and
collectively, to those individuals who are designated on the Endeavour
Signature Page to the First Amendment as the "Endeavour Co-Investors."
"First Amendment" shall mean that First Amendment to this
Agreement dated as of December __, 1996 between the Company, the
Original Investors, Endeavour, the Endeavour Co-Investors and Xxxxxx.
"Investor" and "Investors" shall mean those investors whose
names are listed on the Investor Signature Pages of this Agreement,
Endeavour and the Endeavour Co-Investors.
"Preferred Stock" shall mean the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock and Additional Preferred Stock,
collectively.
2
"Original Investors" shall mean the investors whose names are
listed on the Investor Signature Pages of the Registration Rights
Agreement prior to the execution of the First Amendment.
"Series E Preferred Stock" shall mean the Series E Convertible
Preferred Stock, par value $.001 per share, of the Company.
(b) The parties listed on the Endeavour Signature Page for the First
Amendment to Third Amended and Restated Registration Rights Agreement attached
hereto shall be deemed parties to the Registrations Rights Agreement, as
amended, and are deemed added to the Investor Signature Pages to the
Registration Rights Agreement, as amended.
(c) The following additional Section (k) will be added to Section 12
of the Registration Rights Agreement:
(k) Incorporation of Recitals. The Recitals set forth in
the First Amendment are incorporated herein.
3. Choice of Law. This First Amendment shall be governed by and
construed in accordance with the internal laws of the State of Arizona, without
regard to any provision or rule of the laws of the State of Arizona which would
otherwise cause the laws of a jurisdiction other than the State of Arizona to be
applied.
4. Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
5. Fees and Expenses. The Company shall pay the reasonable legal fees
and expenses of the Original Investors incurred in the preparation of this First
Amendment, review of the documents and agreements in connection with the
transactions described in the Recital hereof and the preparation of additional
documents and agreements related to such transactions.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the day
and year first above written.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
3
[SIGNATURE PAGE FOR FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
CITADEL COMMUNICATIONS CORPORATION
By_______________________________________________
Its___________________________________________
_________________________________________________
Xxxxxxxx X. Xxxxxx
(for purposes of Section 4(a) of the Registration
Rights Agreement only)
_________________________________________________
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________________________________________
Its_______________________________________
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By________________________________________
Its_______________________________________
4
[SIGNATURE PAGE FOR FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
XXXXX, XXXXXXXX & COMPANY
By_______________________________________________
Its___________________________________________
XXXXXXXXXXX & CO., INC.
By_______________________________________________
Its___________________________________________
BANK OF AMERICA ILLINOIS
By_______________________________________________
Its___________________________________________
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:____________________________________________
Name:
Attorney-In-Fact
5
[ENDEAVOUR SIGNATURE PAGE FOR FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED PARTNERSHIP
By DVS Management, Inc.
Its General Partner
By____________________________________________
Its_________________________________________
ENDEAVOUR CO-INVESTORS:
_________________________________________________
Xxxxxx X. Xxxxxxx
THE XXXXXXXXX FAMILY TRUST u/a/d 2-15-94
By:___________________________________________
Xxxxxxx X. Xxxxxxxxx, Trustee
By:___________________________________________
Xxxxx X. Xxxxxxxxx, Trustee
BABSON CAPITAL PARTNERS LIMITED PARTNERSHIP
By_______________________________________________
Its___________________________________________
_________________________________________________
Xxx Xxxxxxx
_________________________________________________
Xxxxxx X. Xxxxx
_________________________________________________
Xxxxx X. XxXxx
6
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "Second Amendment") is made as of September 26, 1997, by and
among Citadel Communications Corporation, a Nevada corporation (the "Company");
Xxxxxx X. Xxxx ("Xxxx"); the investors whose names are designated on the Xxxx
Signature Page to this Second Amendment as "Xxxx Co-Investors" (the "Xxxx Co-
Investors"); The Endeavour Capital Fund Limited Partnership, an Oregon limited
partnership ("Endeavour"); the investors whose names are designated on the
Signature Pages to the First Amendment to Third Amended and Restated
Registration Rights Agreement dated as of December 31, 1996 (the "First
Amendment"), as "Endeavour Co-Investors" (the "Endeavour Co-Investors"); the
investors whose names are listed on the Investor Signature Pages (herein
referred to collectively as the "Original Investors" and individually as an
"Original Investor") of that certain Third Amended and Restated Registration
Rights Agreement dated as of June 28, 1996 (the "Registration Rights Agreement")
between the Company, the Original Investors and, with respect to section 4(a) of
the Registration Rights Agreement, Xxxxxxxx X. Xxxxxx and Xxxxxx Xxxxxx
(collectively, "Xxxxxx"); and Xxxxxx. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the
Registration Rights Agreement.
RECITALS
A. As of June 28, 1996, the Company and the Investors entered into that
certain Securities Purchase and Exchange Agreement (the "Securities Purchase and
Exchange Agreement"). In connection with the execution of the Securities
Purchase and Exchange Agreement, the Company, the Investors and Xxxxxx executed
the Registration Rights Agreement.
B. In connection with the execution of the First Amendment, the Company,
the Investors, Xxxxxx, Endeavor and the Endeavour Co-Investors executed the
Registration Rights Agreement, as amended by the First Amendment.
X. Xxxx and certain Xxxx Co-Investors are the sole owners of all of the
outstanding stock of Xxxx Major Broadcasting Company, a Rhode Island corporation
("Xxxx Major"). As of June 6, 1997, the Company, Citadel, Xxxx Major, Xxxx and
certain Xxxx Co-Investors entered into that certain Merger Agreement (the "Xxxx
Major Merger Agreement"). Pursuant to the Xxxx Major Merger Agreement, Xxxx
Major and Citadel will merge, with Citadel to be the surviving corporation. In
consideration of the Xxxx Major Merger, Xxxx and certain Xxxx Co-Investors will
receive Series F Preferred Stock. Xxxx and certain Xxxx Co-Investors are the
sole owners of all of the outstanding equity interests in Bear Broadcasting
Limited Liability Company, a Rhode Island limited liability company ("Bear"). As
of June 6, 1997, the Company, Citadel, Bear, Xxxx and certain Xxxx Co-Investors
entered into that certain Merger Agreement (the "Bear Merger Agreement", and
collectively with the Xxxx Major Merger Agreement, the "Xxxx Merger
Agreements"). Pursuant to the Bear Merger Agreement, Bear and Citadel will
merge, with Citadel to be the surviving corporation. In consideration of the
Bear Merger, Xxxx and certain Xxxx Co-Investors will receive Series F Preferred
Stock.
D. In order to induce Xxxx and the Xxxx Co-Investors to consummate the
transactions contemplated by the Xxxx Merger Agreements, the parties to this
Second Amendment wish to amend the Registration Rights Agreement to grant
registration rights to Xxxx and the Xxxx Co-Investors to the same extent as the
Original Investors under the Registration Rights Agreement.
E. In connection with the transactions contemplated by the Xxxx Merger
Agreements, the Company, Xxxx, the Xxxx Co-Investors, and certain other parties
have also agreed to enter into the following agreements, each dated as of the
date hereof: that certain Third Amendment to Second Amended and Restated
Stockholders Agreement; that certain Third Amendment to Securities Purchase and
Exchange Agreement; that certain Second Amendment to Third Amended and Restated
Voting Agreement; and that certain Security Holder Agreement (the "Xxxx Proxy")
(together with this Second Amendment, the Xxxx Merger Agreements, and the
transactions contemplated thereby, the "Contemplated Transactions").
ACCORDINGLY, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Second Amendment agree as follows:
1. Consents and Waivers. The Original Investors, Endeavour and the
Endeavour Co-Investors hereby consent to this Second Amendment and inclusion
of Xxxx and the Xxxx Co-Investors as "Investors" under the Registration Rights
Agreement. Further, the Original Investors, Endeavour and the Endeavour
Co-Investors waive any rights they may have pursuant to Section 11 of the
Registration Rights Agreement in connection with the Contemplated Transactions.
2. Amendments.
(a) Section 1 of the Registration Rights Agreement is amended by deleting
the definitions of "Additional Preferred Stock" and "Preferred Stock" and adding
the following definitions in appropriate alphabetical order:
"Additional Preferred Stock" shall mean any additional shares of
preferred stock issued by the Company other than the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock.
"Investor" and "Investors" shall mean those investors whose names are
listed on the Investor Signature Pages of this Agreement, Endeavour,
the Endeavour Co-Investors, Xxxx and the Xxxx Co-Investors.
"Original Investors" shall mean the investors whose names are listed
on the Investor Signature Pages of this Agreement prior to the
execution of the First Amendment.
"Preferred Stock" shall mean the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Additional
Preferred Stock, collectively.
"Second Amendment" shall mean that Second Amendment to this Agreement
dated as of September 26, 1997, among the Company, the Original
Investors, Xxxxxx, Endeavour, the Endeavour Co-Investors, Xxxx and the
Xxxx Co-Investors.
"Series F Preferred Stock" shall mean the Series F Convertible
Preferred Stock, par value $.001 per share, of the Company.
"Xxxx" shall mean and refer Xxxxxx X. Xxxx.
"Xxxx Co-Investors" shall mean and refer, individually and
collectively, to those individuals who are designated on the Xxxx
Signature Page to the Second Amendment as the "Xxxx Co-Investors."
(b) The parties listed on the Xxxx Signature Page for the Second
Amendment to Third Amended and Restated Registration Rights Agreement attached
hereto shall be deemed parties to the Registration Rights Agreement, as amended,
and are deemed added to the Investor Signature Pages to the Registration Rights
Agreement, as amended.
(c) The following additional Section (l) will be added to Section 12
of the Registration Rights Agreement:
(l) Incorporation of Recitals. The Recitals set forth in the
Second Amendment are incorporated herein.
3. Choice of Law. This Second Amendment shall be governed by and
construed in accordance with the internal laws of the State of Arizona, without
regard to any provision or rule of the laws of the State of Arizona which would
otherwise cause the laws of a jurisdiction other than the State of Arizona to be
applied.
4. Counterparts. This Second Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the day
and year first above written.
CITADEL COMMUNICATIONS CORPORATION
By
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Its
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Xxxxxxxx X. Xxxxxx
(for purposes of Section 4(a) of the
Registration Rights Agreement only)
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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
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Its
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4
[SIGNATURE PAGE FOR SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
XXXXX, XXXXXXXX & COMPANY
By
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Its
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XXXXXXXXXXX & CO., INC.
By
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Its
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BANK OF AMERICA, NT&SA, a National
Trust and Savings Association
By
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Its
--------------------------
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:
------------------------
Name:
Attorney-In-Fact
[ENDEAVOUR SIGNATURE PAGE FOR SECOND AMENDMENT TO THIRD
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED PARTNERSHIP
By DVS Management, Inc.
Its General Partner
By
---------------------------
Its
--------------------------
ENDEAVOUR CO-INVESTORS:
*
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Xxxxxx X. Xxxxxxx
THE XXXXXXXXX FAMILY TRUST u/a/d 2-15-94
By: *
--------------------------
Xxxxxxx X. Xxxxxxxxx, Trustee
By *
--------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
BABSON CAPITAL PARTNERS LIMITED PARTNERSHIP
By *
--------------------------------
Its
-------------------------------
*
-----------------------------------
Xxx Xxxxxxx
*
-----------------------------------
Xxxxxx X. Xxxxxx
*
-----------------------------------
Xxxxx X. XxXxx
* By:
-----------------------------
Name:
Attorney-In-Fact
[XXXX SIGNATURE PAGE FOR SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
XXXX:
Xxxxxx X. Xxxx
XXXX CO-INVESTORS:
*
-----------------------------------
Xxxxxxx Xxxxxx
*
-----------------------------------
Xxxxxxx Xxxxxxx
*
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Xxxxx Xxxxxxxxxx
*
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Xxx Xxxxx
*
-----------------------------------
Xxx Xxxxxxx
*
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Xxxxxx Xxxx
*
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Xxxx Xxxxxxxx
*
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M. Xxxxx Xxxx
*
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Xxxx Xxxx
* By:
------------------------
Name:
Attorney-In-Fact
(XXXXXX SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT)
XXXXXX CO-INVESTORS:
*
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Xxx X. Xxxxxx, Xx.
Address: 000 Xxxxxx Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
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Xxxx X. Xxxxxx
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Xxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx
THIRD AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This THIRD AMENDMENT TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "Third Amendment") is made as of October 15, 1997, by and among
Citadel Communications Corporation, a Nevada corporation (the "Company"); the
investors whose names are designated on the Xxxxxx Signature Page to this Second
Amendment as "Xxxxxx Co-Investors" (the "Xxxxxx Co-Investors"); Xxxxxx X. Xxxx
("Xxxx"); the investors whose names are designated on the Xxxx Signature Page to
the Second Amendment to Third Amended and Restated Registration Rights Agreement
dated as of September 26, 1997 as "Xxxx Co-Investors" (the "Xxxx Co-Investors");
The Endeavour Capital Fund Limited Partnership, an Oregon limited partnership
("Endeavour"); the investors whose names are designated on the Signature Pages
to the First Amendment to Third Amended and Restated Registration Rights
Agreement dated as of December 31, 1996 (the "First Amendment"), as "Endeavour
Co-Investors" (the "Endeavour Co-Investors"); the investors whose names are
listed on the Investor Signature Pages (herein referred to collectively as the
"Original Investors" and individually as an "Original Investor") of that certain
Third Amended and Restated Registration Rights Agreement dated as of June 28,
1996 (the "Registration Rights Agreement") between the Company, the Original
Investors and, with respect to section 4(a) of the Registration Rights
Agreement, Xxxxxxxx X. Xxxxxx and Xxxxxx Xxxxxx (collectively, "Xxxxxx"); and
Xxxxxx. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Registration Rights Agreement.
RECITALS
A. As of June 28, 1996, the Company and the Investors entered into that
certain Securities Purchase and Exchange Agreement (the "Securities Purchase and
Exchange Agreement"). In connection with the execution of the Securities
Purchase and Exchange Agreement, the Company, the Investors and Xxxxxx executed
the Registration Rights Agreement.
B. In connection with the execution of the First and Second Amendments,
the Company, the Investors, Xxxxxx, Endeavor, the Endeavour Co-Investors, Xxxx
and the Xxxx Co-Investors executed the Registration Rights Agreement, as amended
by the First Amendment and the Second Amendment.
C. The Xxxxxx Co-Investors are the respective sole owners of all of the
outstanding stock of Xxxxxx Corporation, an Arkansas corporation (owned by X.
Xxxxxx and X. Xxxxxx), and of Xxxxxx Broadcasting Corporation, an Arkansas
corporation (owned by X. Xxxxxx and Xxxxxx) (such corporations, collectively,
the "Xxxxxx Entities"). As of June 2, 1997, the Company and Citadel entered into
Merger Agreements with the respective Xxxxxx Entities and their respective
shareholders (the "Merger Agreements"). Pursuant to the Merger Agreements, each
of the Xxxxxx Entities will merge with Citadel, with Citadel to be the surviving
corporation. In consideration of such mergers, the Xxxxxx Co-Investors will
receive Series G Preferred Stock.
-1-
D. In order to induce the Xxxxxx Co-Investors to consummate the
transactions contemplated by the Merger Agreements, the parties to this Third
Amendment wish to amend the Registration Rights Agreement to grant registration
rights to the Xxxxxx Co-Investors to the same extent as the Original Investors
under the Registration Rights Agreement.
E. In connection with the transactions contemplated by the Merger
Agreements, the Company, the Xxxxxx Co-Investors, and certain other parties have
also agreed to enter into the following agreements, each dated as of the date
hereof: that certain Fourth Amendment to Second Amended and Restated
Stockholders Agreement; that certain Fourth Amendment to Securities Purchase and
Exchange Agreement; and that certain Fourth Amended and Restated Voting
Agreement (together with this Third Amendment, the Merger Agreements, and the
transactions contemplated thereby, the "Contemplated Transactions").
ACCORDINGLY, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Third Amendment agree as follows:
1. Consents and Waivers. The Original Investors, Endeavour, the
Endeavour Co-Investors, Xxxx and the Xxxx Co-Investors hereby consent to this
Third Amendment and inclusion of the Xxxxxx Co-Investors as "Investors" under
the Registration Rights Agreement. Further, the Original Investors, Endeavour,
the Endeavour Co-Investors, Xxxx and the Xxxx Co-Investors waive any rights they
may have pursuant to Section 11 of the Registration Rights Agreement in
connection with the Contemplated Transactions.
2. Amendments.
(a) Section 1 of the Registration Rights Agreement is amended by
deleting the definitions of "Additional Preferred Stock" and "Preferred Stock"
and adding the following definitions in appropriate alphabetical order:
"Additional Preferred Stock" shall mean any additional shares
of preferred stock issued by the Company other than the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock and Series G Preferred Stock.
"Investor" and "Investors" shall mean those investors whose
names are listed on the Investor Signature Pages of this Agreement,
Endeavour, the Endeavour Co-Investors, Xxxx, the Xxxx Co-Investors
and the Xxxxxx Co-Investors.
-2-
"Original Investors" shall mean the investors whose names are
listed on the Investor Signature Pages of this Agreement prior to the
execution of the First Amendment.
"Preferred Stock" shall mean the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series G Preferred
Stock and Additional Preferred Stock, collectively.
"Series G Preferred Stock" shall mean the Series G Convertible
Preferred Stock, par value $.001 per share, of the Company.
"Xxxxxx Co-Investors" shall mean and refer, individually and
collectively, to those individuals who are designated on the Xxxxxx
Signature Page to the Third Amendment as the "Xxxxxx Co-Investors."
"Third Amendment" shall mean that Third Amendment to this
Agreement dated as of October 15, 1997, among the Company, the
Original Investors, Xxxxxx, Endeavour, the Endeavour Co-Investors,
Xxxx, the Xxxx Co-Investors and the Xxxxxx Co-Investors.
(b) The parties listed on the Xxxxxx Signature Page for this Third
Amendment shall be deemed parties to the Registration Rights Agreement, as
amended, and are deemed added to the Investor Signature Pages to the
Registration Rights Agreement, as amended.
(c) The following additional Section (l) will be added to Section 12
of the Registration Rights Agreement:
(l) Incorporation of Recitals. The Recitals set forth in
the Third Amendment are incorporated herein.
3. Choice of Law. This Third Amendment shall be governed by and
construed in accordance with the internal laws of the State of Arizona, without
regard to any provision or rule of the laws of the State of Arizona which would
otherwise cause the laws of a jurisdiction other than the State of Arizona to be
applied.
4. Counterparts. This Third Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
-3-
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the day
and year first above written.
CITADEL COMMUNICATIONS CORPORATION
By_____________________________________
Its_________________________________
Xxxxxxxx X. Xxxxxx
(for purposes of Section 4(a) of the
Registration Rights Agreement only)
_______________________________________
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________________________________
Its_______________________________
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By ABRY CAPITAL, L.P.
Its General partner
By ABRY HOLDINGS, INC.
Its General Partner
By________________________________
Its_______________________________
-4-
[SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
XXXXX, XXXXXXXX & COMPANY
By_____________________________________
Its_________________________________
XXXXXXXXXXX & CO., INC.
By_____________________________________
Its_________________________________
BANK OF AMERICA, NT&SA, a National Trust and
Savings Association
By__________________________________
Its______________________________
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
*
---------------------------------------
Ford X. Xxxxxxxxx
*
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Xxxxxxx X. Xxxx
*
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Xxxxxxx X. Xxxxx
*
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Xxxxxx X. Xxxxxx
*
---------------------------------------
Xxxxxx X. Xxxxxxx
* By:__________________________________
Name:
Attorney-In-Fact
-5-
[ENDEAVOUR SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
ENDEAVOUR:
THE ENDEAVOUR CAPITAL FUND LIMITED
PARTNERSHIP
By DVS Management, Inc.
Its General Partner
By__________________________________
Its_______________________________
ENDEAVOUR CO-INVESTORS:
*
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Xxxxxx X. Xxxxxxx
THE XXXXXXXXX FAMILY TRUST u/a/d 2-15-94
By: *
---------------------------------
Xxxxxxx X. Xxxxxxxxx, Trustee
By: *
---------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
BABSON CAPITAL PARTNERS LIMITED
PARTNERSHIP
By *
_____________________________________
Its_________________________________
*
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Xxx Xxxxxxx
*
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Xxxxxx X. Xxxxx
*
---------------------------------------
Xxxxx X. XxXxx
* By:__________________________________
Name:
-6-
Attorney-In-Fact
-7-
[XXXX SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
XXXX:
---------------------------------------
Xxxxxx X. Xxxx
XXXX CO-INVESTORS:
*
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Xxxxxxx Xxxxxx
*
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Xxxxxxx Xxxxxxx
*
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Xxxxx Xxxxxxxxxx
*
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Xxx Xxxxx
*
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Xxx Xxxxxxx
*
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Xxxxxx Xxxx
*
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Xxxx Xxxxxxxx
*
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M. Xxxxx Xxxx
*
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Xxxx Xxxx
* By:
---------------------------------
Name:
Attorney-In-Fact
-8-
[XXXXXX SIGNATURE PAGE FOR THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
XXXXXX CO-INVESTORS:
---------------------------------------
Xxx X. Xxxxxx, Xx.
Address:
000 Xxxxxx Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
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Xxxx X. Xxxxxx
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Xxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx
-9-
