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Exhibit 10.26
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
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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.
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"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.
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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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ABRY/CITADEL INVESTMENT PARTNERS, 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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[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
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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:
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Name:
Attorney-In-Fact
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[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
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Its
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ENDEAVOUR CO-INVESTORS:
*
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Xxxxxx X. Xxxxxxx
THE XXXXXXXXX FAMILY TRUST u/a/d 2-15-94
By *
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Xxxxxxx X. Xxxxxxxxx, Trustee
By *
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Xxxxx X. Xxxxxxxxx, Trustee
BABSON CAPITAL PARTNERS LIMITED PARTNERSHIP
By
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Its
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*
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Xxx Xxxxxxx
*
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Xxxxxx X. Xxxxx
*
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Xxxxx X. XxXxx
* By:
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Name:
Attorney-In-Fact
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[XXXX SIGNATURE PAGE FOR SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT]
XXXX:
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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
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