EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
among
FLCC HOLDINGS, INC.
CITADEL COMMUNICATIONS CORPORATION,
CITADEL BROADCASTING COMPANY,
FORSTMANN LITTLE & CO. EQUITY PARTNERSHIP - VI, L.P.,
FORSTMANN LITTLE & CO. EQUITY PARTNERSHIP - VII, L.P.,
FORSTMANN LITTLE & CO. SUBORDINATED DEBT
AND EQUITY MANAGEMENT BUYOUT PARTNERSHIP - VII, X.X.
XXXXXXXXX LITTLE & CO. SUBORDINATED DEBT
AND EQUITY MANAGEMENT BUYOUT PARTNERSHIP - VIII, L.P.
XXXXXXXX X. XXXXXX
and
RIO BRAVO ENTERPRISE ASSOCIATES, L.P.
June 26, 2001
REGISTRATION RIGHTS AGREEMENT, dated as of June 26, 2001, among FLCC
Holdings, Inc., a Delaware corporation ("Parent"), Citadel Communications
Corporation, a Nevada corporation (the "Company") and wholly owned subsidiary
of Parent, Citadel Broadcasting Company, a Nevada corporation ("Citadel
Broadcasting"), Forstmann Little & Co. Equity Partnership - VI, L.P., a
Delaware limited partnership ("Equity-VI"), Forstmann Little & Co. Equity
Partnership - VII, L.P., a Delaware limited partnership ("Equity-VII"),
Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership - VII, L.P., a Delaware limited partnership ("MBO-VII"),
Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership - VIII, L.P., a Delaware limited partnership ("MBO-VIII")
(Equity-VI, Equity-VII, MBO-VII and MBO-VIII are individually referred to as
a "Forstmann Little Partnership" and collectively referred to as the
"Forstmann Little Partnerships"), Xxxxxxxx X. Xxxxxx ("Xxxxxx") and Rio Bravo
Enterprise Associates, L.P., a Georgia limited partnership ("Rio Bravo
Enterprise" and, together with Xxxxxx, "Rio Bravo").
If any of the Forstmann Little Partnerships, Rio Bravo Enterprise or
Xxxxxx desires to sell shares of Common Stock (whether prior to, concurrently
with or following any registration and offering by Parent of shares of its
capital stock to the public (an "Offering")), it may be necessary to register
such shares under the Securities Act (as defined below).
As part of, and as consideration for, the acquisition of shares of
Common Stock by the Forstmann Little Partnerships and Rio Bravo from Parent, on
the date hereof and from time to time hereafter, Parent hereby grants to the
Forstmann Little Partnerships and Rio Bravo certain registration and other
rights with respect to their shares of Common Stock as more fully set forth
herein.
Accordingly, the parties hereto agree as follows:
1. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Certificate of Incorporation" means the Certificate of Incorporation
of Parent, as it may be amended or restated hereafter from time to time.
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means any shares of common stock, par value $0.01 per
share, of Parent, now or hereafter authorized to be issued, and any and all
securities of any kind whatsoever of Parent which may be exchanged for or
converted into Common Stock, any and all securities of any kind whatsoever of
Parent which may be issued on or after the date hereof in respect of, in
exchange for, or upon conversion of shares of Common Stock pursuant to a merger,
consolidation, stock split, stock dividend, recapitalization of Parent or
otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the
same shall be in effect at the time. Reference to a particular section of the
Exchange Act shall include a reference to the comparable section, if any, of any
such similar Federal statute.
"Holder" means any party who is a signatory to this Agreement and who
holds Registrable Securities. For purposes of Sections 2.3, 2.5 and 2.6, Rio
Bravo shall be deemed to be one Holder.
"IPO" means the initial public offering of equity securities of the
Company pursuant to an effective registration statement under the Securities
Act.
"Other Investor" means each Person who, at the time of any
registration of Common Stock hereunder, has the right under a stockholder's
agreement or stock option agreement with Parent to participate in any public
offering of all or a portion of the shares of Common Stock owned by the
Forstmann Little Partnerships or Rio Bravo.
"Person" means a corporation, an association, a partnership, an
organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Registering Holder" means an Initiating Holder that registers
Registrable Securities pursuant to Section 2.1; provided, however, that if any
of the Forstmann Little Partnerships desires to include all or a portion of its
Registrable Securities in any registration effected by Parent pursuant to
Section 2.1, the term "Registering Holder" shall be deemed to mean the Forstmann
Little Partnerships.
"Registrable Securities" means (i) any shares of Common Stock owned by
the Forstmann Little Partnerships, whether acquired prior or subsequent to the
effectiveness of this Agreement, (ii) the Rio Bravo Securities, (iii) any shares
of Common Stock held pursuant to the terms of a stockholder's agreement or
issuable upon exercise of an option pursuant to the terms of a stock option
agreement, as the case may be, between any Other Investor and Parent, which
agreement gives such Other Investor the right to participate proportionately
with the Forstmann Little Partnerships in a public offering with respect to such
shares, and (iv) any Common Stock issued with respect to the Common Stock
referred to in clauses (i), (ii) or (iii) by way of a stock dividend, stock
split or reverse stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or otherwise. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
(a) when a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) when
such securities shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
Parent and subsequent public distribution of them shall not require registration
of them under the Securities Act, or (c) when such securities shall have been
sold as permitted by, and in compliance with, the Securities Act. Any
certificate evidencing the Registrable Securities shall bear a legend stating
that the securities have not been registered under the Securities Act and
setting forth or referring to the restrictions on transferability and sale of
the securities.
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"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to Section 2
hereof, including, without limitation, all registration, filing and applicable
national securities exchange fees, all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of counsel to the
underwriters, the Forstmann Little Partnerships or Rio Bravo and the Other
Investors in connection with "blue sky" qualification of the Registrable
Securities and determination of their eligibility for investment under the laws
of the various jurisdictions), all word processing, duplicating and printing
expenses, all messenger and delivery expenses, the fees and disbursements of
counsel for Parent and of its independent public accountants, including the
expenses of "cold comfort" letters or any special audits required by, or
incident to, such registration, all fees and disbursements of underwriters
(other than underwriting discounts and commissions), all transfer taxes, and the
fees and expenses of counsel to the Forstmann Little Partnerships, Rio Bravo and
the Other Investors; PROVIDED, HOWEVER, that Registration Expenses shall
exclude, and the Forstmann Little Partnerships, Rio Bravo and the Other
Investors shall pay, underwriting discounts and commissions in respect of the
Registrable Securities being registered for such Person.
"Rio Bravo Securities" means (i) any shares of Common Stock owned by
Rio Bravo Enterprise or Xxxxxx acquired pursuant to the Stockholder's Agreement
and (ii) any Common Stock issued with respect to the Common Stock referred to in
clause (i) by way of a stock dividend, stock split or reverse stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or otherwise.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
"Stockholder's Agreement" means the Stockholder's Agreement, dated as
of June 26, 2001, among Parent, Xxxxxxxx X. Xxxxxx, Rio Bravo Enterprise and Rio
Bravo, Inc., a Wyoming corporation.
"Trigger Event" means any event set forth in Section 3.2(a) or (b) of
the Stockholder's Agreement the occurrence of which would permit Rio Bravo
Enterprise or Xxxxxx under such Section 3.2(a) or (b) to require the Parent to
purchase the shares of Class B Common Stock acquired by Rio Bravo Enterprise or
Xxxxxx, as the case may be, thereunder.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 REGISTRATION ON REQUEST.
(a) REQUEST. At any time or from time to time, the
Forstmann Little Partnerships, individually or jointly, shall have the right to
require Parent to effect the registration under the Securities Act of all or
part of their respective Registrable Securities, by delivering a written request
(a "Forstmann Little Request") therefor to Parent specifying the number of
shares of Registrable Securities and the intended method of distribution. At any
time
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following the occurrence of both (i) the consummation of an IPO and (ii) a
Trigger Event, Rio Bravo shall have the right to require Parent to effect the
registration under the Securities Act of all or part of its Rio Bravo
Securities, by delivering a written request (a "Rio Bravo Request") therefor to
Parent specifying the number of shares of Rio Bravo Securities and the intended
method of distribution; PROVIDED, HOWEVER, that if a Trigger Event occurs more
than 180 days prior to the consummation of an IPO, Rio Bravo shall not be
entitled to make a Rio Bravo Request or otherwise require Parent to effect a
registration under this Section 2.1. The party or parties delivering a Forstmann
Little Request or a Rio Bravo Request shall be referred to as the "Initiating
Holder." In the case of a Forstmann Little Request, Parent shall as
expeditiously as possible (but in any event within 120 days of receipt of the
Forstmann Little Request), use its best efforts to effect the registration under
the Securities Act (including by means of a shelf registration pursuant to Rule
415 under the Securities Act if so requested in such request and if Parent is
then eligible to use such a registration) of the Registrable Securities which
Parent has been so requested to register by the Initiating Holder. In the case
of a Rio Bravo Request, as promptly as practicable, but no later than ten days
after receipt of a Rio Bravo Request, the Company shall given written notice of
the Rio Bravo Request to all Holders (the "Demand Exercise Notice"). Parent
shall as expeditiously as possible (but in any event within 120 days of receipt
of a Rio Bravo Request), use its best efforts to effect the registration under
the Securities Act of the Registrable Securities which Parent has been so
requested to register by the Initiating Holder and any other Holder which have
made a written request to the Company for inclusion in such registration (which
request shall specify the maximum number of Registrable Securities intended to
be disposed of by such Holder) within 30 days after the receipt of the Demand
Exercise Notice (or, 15 days if, at the request of the Initiating Holder
participating in such registration, the Company states in such written notice or
gives telephonic notice to all Holders, with written confirmation to follow
promptly thereafter, that such registration will be on a Form S-3). Parent shall
(i) use its best efforts to effect the registration of Registrable Securities
for distribution in accordance with the intended method of distribution set
forth in the written request delivered by the Initiating Holder, and (ii) if
requested by the Initiating Holder, obtain acceleration of the effective date of
then registration statement relating to such registration.
(b) REGISTRATION OF OTHER SECURITIES. Whenever Parent shall
effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by any Forstmann Little Partnership, Rio Bravo and any
Other Investors of Registrable Securities, no securities other than Registrable
Securities shall be included among the securities covered by such registration
unless the Registering Holder shall have consented in writing to the inclusion
therein of such other securities, which consent may be subject to terms and
conditions determined by the Registering Holder in its sole discretion.
(c) REGISTRATION STATEMENT FORM. Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission as
shall be selected by Parent and as shall be reasonably acceptable to the
Registering Holder. Parent agrees to include in any such registration statement
all information which, in the opinion of counsel to the Registering Holder and
counsel to Parent, is necessary or desirable to be included therein.
(d) EXPENSES. Parent, the Company and Citadel Broadcasting
shall pay, and shall be jointly and severally responsible for, all Registration
Expenses in
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connection with any registration requested pursuant to this Section 2.1.
Notwithstanding the foregoing, the provisions of this Section 2.1(d) shall be
deemed amended to the extent necessary to cause these expense provisions to
comply with "blue sky" laws of each state or the securities laws of any other
jurisdiction in the United States and its territories in which the offering is
made.
(e) EFFECTIVE REGISTRATION STATEMENT. A registration
requested pursuant to this Section 2.1 shall not be deemed to have been effected
(including for purposes of paragraph (h) of this Section 2.1) (i) unless a
registration statement with respect thereto has become effective and has been
kept continuously effective for a period of at least 120 days (or such shorter
period which shall terminate when all the Registrable Securities covered by such
registration statement have been sold pursuant thereto), (ii) if after it has
become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to the Registering Holder and
has not thereafter become effective, or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
such registration are not satisfied or waived.
(f) SELECTION OF UNDERWRITERS. The underwriters of each
underwritten offering of the Registrable Securities so to be registered shall be
selected by the Registering Holder.
(g) RIGHT TO WITHDRAW. If the managing underwriter of any
underwritten offering shall advise the Registering Holder that the Registrable
Securities covered by the registration statement cannot be sold in such offering
within a price range acceptable to the Registering Holder, then the Registering
Holder shall have the right to notify Parent in writing that it has determined
that the registration statement be abandoned or withdrawn, in which event Parent
shall abandon or withdraw such registration statement; PROVIDED, HOWEVER, that
if Rio Bravo is the Initiating Holder with respect to such offering and notifies
Parent in writing that it has determined that the registration statement should
not be abandoned or withdrawn, Parent shall not abandon or withdraw such
registration statement with respect to any of Rio Bravo's Registrable
Securities. In the event of such abandonment or withdrawal at the request of the
Registering Holder, the Initiating Holder's request for registration pursuant to
this Section 2.1 shall not be counted for purposes of the requests for
registration to which the Initiating Holder is entitled pursuant to this
Section 2.1, except with respect to Rio Bravo, if it exercises its rights
pursuant to the proviso contained in the immediately preceding sentence.
(h) LIMITATIONS ON REGISTRATION ON REQUEST. The Forstmann
Little Partnerships shall be entitled to require Parent to effect, and Parent
shall be required to effect, six registrations in the aggregate pursuant to this
Section 2.1, and Rio Bravo Enterprise and Xxxxxx, together, shall be entitled to
require Parent to effect, and Parent shall be required to effect, one
registration in the aggregate pursuant to this Section 2.1, PROVIDED, HOWEVER,
that the aggregate offering value of the shares to be registered pursuant to any
such registration shall be at least $15,000,000 unless the Forstmann Little
Partnerships or Rio Bravo Enterprise and Xxxxxx, together, as the case may be,
then own shares with an aggregate value less than $15,000,000 (in which case
such lesser number of shares may be registered). If Rio Bravo Enterprise or
Xxxxxx
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makes a Rio Bravo Request and the Forstmann Little Partnerships are deemed to be
the Registering Holder in connection with such registration, such request shall
not be counted for purposes of the one request for registration to which Rio
Bravo and Xxxxxx, together, are entitled pursuant to this Section 2.1.
(i) PRIORITY IN REGISTRATIONS ON REQUEST. If any
registration pursuant to a Rio Bravo Request involves an underwritten offering
and the managing underwriter of such offering shall inform Parent in writing of
its belief that the number of Registrable Securities requested to be included in
such registration pursuant to this Section 2.1, when added to the number of
other securities to be offered in such registration, would materially adversely
affect such offering, then Parent shall include in such registration, to the
extent of the number and type which Parent is so advised can be sold in (or
during the time of) such offering without so materially adversely affecting such
offering (the "Section 2.1 Sale Amount"), (i) all Registrable Securities
requested to be included in such registration by Rio Bravo or the Forstmann
Little Partnerships (including Registrable Securities held by Other Investors);
PROVIDED, HOWEVER, that if the number of such Registrable Securities exceeds the
Section 2.1 Sale Amount, the number of such Registrable Securities to be
included in such registration shall be allocated on a pro rata basis among Rio
Bravo and the Forstmann Little Partnerships (including Registrable Securities
held by Other Investors), based on the number of Registrable Securities each of
Rio Bravo and the Forstmann Little Partnerships requested to be included in such
registration (including Registrable Securities held by Other Investors) in
relation to the aggregate amount of Registrable Securities requested to be
included in such registration by Rio Bravo and the Forstmann Little Partnerships
(including Registrable Securities held by Other Investors); and (ii) thereafter,
to the extent the Section 2.1 Sale Amount is not exceeded, any other securities
of Parent requested to be included in such registration by any holder thereof.
(j) POSTPONEMENT. Parent shall be entitled once in any
six-month period to postpone for a reasonable period of time (but not exceeding
90 days) (the "Postponement Period") the filing of any registration statement
required to be prepared and filed by it pursuant to this Section 2.1 if Parent
determines, in its reasonable judgment, that such registration and offering
would materially interfere with any material financing, corporate reorganization
or other material transaction involving Parent or any subsidiary, or would
require premature disclosure thereof, and promptly gives the Registering Holder
and the Initiating Holder (if different from the Registering Holder) written
notice of such determination, containing a general statement of the reasons for
such postponement and an approximation of the anticipated delay. If Parent shall
so postpone the filing of a registration statement, the Initiating Holder shall
have the right to withdraw the request for registration by giving written notice
to Parent at any time and, in the event of such withdrawal, such request shall
not be counted for purposes of the requests for registration to which the
Initiating Holder is entitled pursuant to this Section 2.1.
(k) CUTBACKS. In the case of a registration pursuant to
this Section 2.1 where the Initiating Holder is not able to sell in such
registration all of the Registrable Securities that such Initiating Holder
requested to be included in such registration as a result of the priority of
sale provisions set forth in Section 2.1(i) hereof, then the Initiating Holder's
request for registration shall not be counted for purposes of the requests for
registration to which such Initiating Holder is entitled pursuant to
Section 2.1(h).
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2.2 INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If Parent at
any time proposes to register any of its securities under the Securities Act by
registration on Form X-0, X-0 or S-3 or any successor or similar form(s) (except
registrations on any such Form or similar form(s) solely for registration of
securities in connection with an employee benefit plan or dividend reinvestment
plan or a merger or consolidation), whether or not for sale for its own account,
it will each such time give prompt written notice to each of the Forstmann
Little Partnerships of its intention to do so and of the Forstmann Little
Partnerships' rights under this Section 2.2. Upon the written request of any of
the Forstmann Little Partnerships (which request shall specify the maximum
number of Registrable Securities intended to be disposed of by the Forstmann
Little Partnerships), made as promptly as practicable and in any event within 30
days after the receipt of any such notice (15 days if Parent states in such
written notice or gives telephonic notice to the Forstmann Little Partnerships,
with written confirmation to follow promptly thereafter, stating that (i) such
registration will be on Form S-3 and (ii) such shorter period of time is
required because of a planned filing date), Parent shall use its best efforts to
effect the registration under the Securities Act of all Registrable Securities
which Parent has been so requested to register by the Forstmann Little
Partnerships; PROVIDED, HOWEVER, that if, at any time after giving written
notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
Parent shall determine for any reason not to register or to delay registration
of such securities, Parent shall give written notice of such determination and
its reasons therefor to the Forstmann Little Partnerships and (i) in the case of
a determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
any obligation of Parent to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of the Forstmann Little
Partnerships to request that such registration be effected as a registration
under Section 2.1 and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities, for the same
period as the delay in registering such other securities. No registration
effected under this Section 2.2 shall relieve Parent of its obligation to effect
any registration upon request under Section 2.1. Parent will pay all
Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 2.2. No registration effected by
the Company pursuant to a Rio Bravo Request shall be deemed to be a registration
pursuant to this Section 2.2
(b) RIGHT TO WITHDRAW. The Forstmann Little Partnerships
shall have the right to withdraw their request for inclusion of its Registrable
Securities in any registration statement pursuant to this Section 2.2 at any
time prior to the execution of an underwriting agreement with respect thereto by
giving written notice to Parent of its request to withdraw.
(c) PRIORITY IN INCIDENTAL REGISTRATIONS. If any
registration pursuant to this Section 2.2 involves an underwritten offering and
the managing underwriter of such offering shall inform Parent in writing of its
belief that the number of Registrable Securities requested to be included in
such registration, when added to the number of other securities to be offered in
such registration, would materially adversely affect such offering, then Parent
shall
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include in such registration, to the extent of the number and type which Parent
is so advised can be sold in (or during the time of) such offering without so
materially adversely affecting such offering (the "Section 2.2 Sale Amount"),
(i) all of the securities proposed by Parent to be sold for its own account;
(ii) thereafter, to the extent the Section 2.2 Sale Amount is not exceeded, the
Registrable Securities requested by the Forstmann Little Partnerships to be
included in such registration pursuant to Section 2.2(a) (including Registrable
Securities held by Other Investors); and (iii) thereafter, to the extent the
Section 2.2 Sale Amount is not exceeded, any other securities of Parent
requested to be included in such registration by any holder thereof, including,
in the case where such registration is to be effected as a result of the
exercise by a holder of Parent's securities of such holder's right to cause such
securities to be so registered, the securities of such holder.
(d) PLAN OF DISTRIBUTION. Any participation by holders of
Registrable Securities in a registration by Parent shall be in accordance with
Parent's plan of distribution, provided that the Forstmann Little Partnerships
requesting registration pursuant to this Section 2.2 shall have the right to
select the co-managing underwriter.
2.3 REGISTRATION PROCEDURES. If and whenever Parent is required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2.1 and 2.2 hereof, Parent
shall as expeditiously as possible:
(a) prepare and file with the Commission as soon as
practicable the requisite registration statement to effect such registration
(and shall include all financial statements required by the Commission to be
filed therewith) and thereafter use its best efforts to cause such registration
statement to become effective; provided, however, that before filing such
registration statement (including all exhibits) or any amendment or supplement
thereto or comparable statements under securities or blue sky laws of any
jurisdiction, Parent shall furnish such documents to each Holder and each
underwriter, if any, in each case participating in the offering of the
Registrable Securities (a Holder participating in the offering of Registrable
Securities being referred to as a "Participating Holder") and their respective
counsel, which documents will be subject to the review and comments of each
Participating Holder, each underwriter and their respective counsel; and
provided, further, however, that Parent may discontinue any registration of its
securities which are not Registrable Securities at any time prior to the
effective date of the registration statement relating thereto;
(b) notify the Participating Holders of the Commission's
requests for amending or supplementing the registration statement and the
prospectus, and prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
for such period as shall be required for the disposition of all of such
Registrable Securities in accordance with the intended method of distribution
thereof; PROVIDED, that except with respect to any such registration statement
filed pursuant to Rule 415 under the Securities Act, such period need not exceed
120 days;
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(c) furnish, without charge, to each Participating Holder
and each underwriter such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents, as the Participating Holders and such underwriters may
reasonably request;
(d) use its best efforts (i) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such securities or blue sky laws of such States of the United
States of America where an exemption is not available and as the Participating
Holders or any managing underwriter shall reasonably request, (ii) to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and (iii) to take any other action which may be
reasonably necessary or advisable to enable the Participating Holders to
consummate the disposition in such jurisdictions of the securities to be sold by
the Participating Holders, except that Parent shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subsection
(d) be obligated to be so qualified or to consent to general service of process
in any such jurisdiction;
(e) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or authorities as
may be necessary in the opinion of counsel to Parent and counsel to each of the
Participating Holders to consummate the disposition of such Registrable
Securities;
(f) furnish to each Participating Holder and each
underwriter, if any, participating in the offering of the securities covered by
such registration statement, a signed counterpart of (i) an opinion of counsel
for Parent, and (ii) a "comfort" letter signed by the independent public
accountants who have certified Parent's financial statements included or
incorporated by reference in such registration statement, covering substantially
the same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' comfort letter, with
respect to events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in accountants' comfort
letters delivered to the underwriters in underwritten public offerings of
securities (and dated the dates such opinions and comfort letters are
customarily dated) and, in the case of the legal opinion, such other legal
matters, and, in the case of the accountants' comfort letter, such other
financial matters as the Participating Holders or the underwriters may
reasonably request;
(g) promptly notify each Participating Holder and each
managing underwriter, if any, participating in the offering of the securities
covered by such registration statement (i) when such registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement related
thereto or post-effective amendment to such registration statement has been
filed, and, with respect to such registration statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the
Commission for amendments or supplements to such registration statement or the
prospectus
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related thereto or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such registration
statement or the initiation of any proceedings for that purpose; (iv) of the
receipt by Parent of any notification with respect to the suspension of the
qualification of any of the Registrable Securities for sale under the securities
or blue sky laws of any jurisdiction or the initiation of any proceeding for
such purpose; (v) at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, in the light of the
circumstances under which they were made, and in the case of this clause (v), at
the request of a Participating Holder promptly prepare and furnish to each
Participating Holder and each managing underwriter, if any, participating in the
offering of the Registrable Securities, a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made; and
(vi) at any time when the representations and warranties of Parent contemplated
by Section 2.4(a) or (b) hereof cease to be true and correct;
(h) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder, and promptly furnish to each Participating Holder a copy
of any amendment or supplement to such registration statement or prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be Parent) for all Registrable Securities
covered by such registration statement from and after a date not later than the
effective date of such registration;
(j) (i) use its best efforts to cause all Registrable
Securities covered by such registration statement to be listed on the principal
securities exchange on which similar securities issued by Parent are then listed
(if any), if the listing of such Registrable Securities is then permitted under
the rules of such exchange, or (ii) if no similar securities are then so listed,
use its best efforts to (x) cause all such Registrable Securities to be listed
on a national securities exchange or (y) failing that, secure designation of all
such Registrable Securities as a National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ") "national market system security"
within the meaning of Rule 11Aa2-1 of the Commission or (z) failing that, to
secure NASDAQ authorization for such shares and, without limiting the generality
of the foregoing, to arrange for at least two market makers to register as such
with respect to such shares with the National Association of Securities Dealers,
Inc.;
(k) deliver promptly to counsel to each Participating
Holder and each underwriter, if any, participating in the offering of the
Registrable Securities, copies of
11
all correspondence between the Commission and Parent, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to such registration statement;
(l) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities,
no later than the effective date of the registration statement; and
(n) make available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of Parent's, the Company's and Citadel Broadcasting's businesses) in
their marketing of Registrable Securities.
Parent may require the Participating Holders to furnish Parent
such information regarding such Participating Holders and the distribution of
the Registrable Securities as Parent may from time to time reasonably request in
writing.
Each Participating Holder agrees that upon receipt of any notice
from Parent of the happening of any event of the kind described in paragraph
(g)(iii) or (v) of this Section 2.3, each Participating Holder will, to the
extent appropriate, discontinue its disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until, in the case of paragraph (g)(v) of this Section 2.3, its receipt of the
copies of the supplemented or amended prospectus contemplated by paragraph
(g)(v) of this Section 2.3 and, if so directed by Parent, will deliver to Parent
(at Parent's expense) all copies, other than permanent file copies, then in its
possession, of the prospectus relating to such Registrable Securities current at
the time of receipt of such notice. If the disposition by a Participating Holder
of its securities is discontinued pursuant to the foregoing sentence, Parent
shall extend the period of effectiveness of the registration statement by the
number of days during the period from and including the date of the giving of
notice to and including the date when the Participating Holder shall have
received copies of the supplemented or amended prospectus contemplated by
paragraph (g)(v) of this Section 2.3; and, if Parent shall not so extend such
period, the Participating Holder's request pursuant to which such registration
statement was filed shall not be counted for purposes of the requests for
registration to which the Participating Holder is entitled pursuant to
Section 2.1 hereof.
2.4 UNDERWRITTEN OFFERINGS.
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by Participating Holders (and any
Other Investors) pursuant to a registration requested under Section 2.1, Parent
shall enter into a customary underwriting agreement with a managing underwriter
or underwriters selected by the Registering Holder. Such underwriting agreement
shall be satisfactory in form and substance to the Registering Holder and shall
contain such representations and warranties by, and such other agreements on the
part of, Parent and such other terms as are generally prevailing in agreements
of that type, including, without limitation, customary provisions relating to
indemnification and
12
contribution. Each Participating Holder shall be a party to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
Parent to and for the benefit of such underwriters shall also be made to and for
the benefit of each Participating Holder and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of each Participating
Holder. No Participating Holder shall be required to make any representations or
warranties to or agreements with Parent or the underwriters other than
representations, warranties or agreements regarding such Participating Holder,
its ownership of and title to the Registrable Securities, and its intended
method of distribution; and any liability of any Participating Holder to any
underwriter or other person under such underwriting agreement shall be limited
to liability arising from breach of its representations and warranties and shall
be limited to an amount equal to the proceeds (net of expenses and underwriting
discounts and commissions) that it derives from such registration.
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. In the case of a
registration pursuant to Section 2.2 hereof, if Parent shall have determined to
enter into any underwriting agreements in connection therewith, all of the
Registrable Securities to be included in such registration shall be subject to
such underwriting agreements. The Participating Holders may, at their option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, Parent to and for the benefit of such underwriters
shall also be made to and for the benefit of the Participating Holders and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
the Participating Holders. None of the Participating Holders shall be required
to make any representations or warranties to or agreements with Parent or the
underwriters other than representations, warranties or agreements regarding such
Participating Holder, its ownership of and title to the Registrable Securities,
and its intended method of distribution; and any liability of any Participating
Holder to any underwriter or other Person under such underwriting agreement
shall be limited to liability arising from breach of its representations and
warranties and shall be limited to an amount equal to the proceeds (net of
expenses and underwriting discounts and commissions) that it derives from such
registration.
2.5 PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, Parent will give the Participating Holders,
their underwriters, if any, and their respective counsel, accountants and other
representatives and agents the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and give each of
them such access to its books and records and such opportunities to discuss the
business of Parent with its officers and employees and the independent public
accountants who have certified its financial statements, and supply all other
information reasonably requested by each of them, as shall be necessary or
appropriate, in the opinion of the Participating Holders and such underwriters'
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
2.6 INDEMNIFICATION.
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(a) INDEMNIFICATION BY PARENT, THE COMPANY AND CITADEL
BROADCASTING. Parent, the Company and Citadel Broadcasting agree, jointly and
severally, that in the event of any registration of any securities of Parent
under the Securities Act, each of Parent, the Company and Citadel Broadcasting
shall, and hereby does, indemnify and hold harmless each of the Forstmann Little
Partnerships, Rio Bravo, and their respective directors, officers, partners,
agents and affiliates and each other Person who participates as an underwriter
in the offering or sale of such securities and each other Person, if any, who
controls such Forstmann Little Partnership or Rio Bravo or any such underwriter
within the meaning of the Securities Act (collectively, the "Indemnitees"),
against any losses, claims, damages, costs and expenses (including, without
limitation, attorney's fees) or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened, in respect thereof) ("Losses"), to
which such Indemnitee may become subject under the Securities Act or otherwise,
insofar as such Losses arise out of or are based upon (i) any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in which
they were made not misleading, or (iii) any violation by Parent of any federal,
state or common law rule or regulation applicable to Parent and relating to
action required of or inaction by Parent in connection with any such
registration, and each of Parent, the Company and Citadel Broadcasting shall
reimburse such Indemnitee for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such Loss;
PROVIDED that Parent, the Company and Citadel Broadcasting shall not be liable
in any such case to an Indemnitee to the extent that any such Loss arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to Parent
through an instrument duly executed by or on behalf of such Indemnitee,
specifically stating that it is for use in the preparation thereof; and
PROVIDED, FURTHER, that Parent, the Company and Citadel Broadcasting shall not
be liable to any Person who participates as an underwriter in the offering or
sale of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such Loss (i) arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to Parent through an instrument duly executed
by or on behalf of such Person or (ii) arises out of such Person's failure to
send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus. Such indemnity
shall remain in full force regardless of any investigation made by or on behalf
of any Indemnitee and shall survive the transfer of such securities by such
seller.
14
(b) INDEMNIFICATION BY PARTICIPATING HOLDERS. As a
condition to including any Registrable Securities in any registration statement,
Parent shall have received an undertaking reasonably satisfactory to it from
each Participating Holder so including any Registrable Securities to, severally
and not jointly, indemnify and hold harmless (in the same manner and to the same
extent as set forth in paragraph (a) of this Section 2.6) Parent, and each
director of Parent, each officer of Parent and each other Person, if any, who
controls Parent within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, but only
to the extent such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to Parent through an instrument duly executed by such Participating
Holder specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement; PROVIDED, HOWEVER, that the liability of
such indemnifying party under this Section 2.6(b) shall be limited to the amount
of proceeds (net of expenses and underwriting discounts and commissions)
received by such indemnifying party in the offering giving rise to such
liability. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of Parent or any such director, officer
or controlling Person and shall survive the transfer of such securities by such
Participating Holder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subsections of this Section 2.6,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action or proceeding; PROVIDED, HOWEVER, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of this
Section 2.6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice, and shall not relieve the
indemnifying party from any liability which it may have to the indemnified party
otherwise than under this Section 2.6. In case any such action or proceeding is
brought against an indemnified party, the indemnifying party shall be entitled
to participate therein and, unless in the opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party; PROVIDED, HOWEVER, that if the defendants in any such action
or proceeding include both the indemnified party and the indemnifying party and
if in the opinion of outside counsel to the indemnified party there may be legal
defenses available to such indemnified party and/or other indemnified parties
which are different from or in addition to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to defend such action or proceeding on behalf of such indemnified party
or parties, PROVIDED, HOWEVER, that the indemnifying party shall be obligated to
pay for only one counsel for all indemnified parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for any legal
expenses subsequently incurred by the latter in connection with the defense
15
thereof other than reasonable costs of investigation (unless the first proviso
in the preceding sentence shall be applicable). No indemnifying party shall be
liable for any settlement of any action or proceeding effected without its
written consent. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 2.6 shall for any reason be held by a court to be unavailable to an
indemnified party under subsection (a) or (b) hereof in respect of any Loss,
then, in lieu of the amount paid or payable under subsection (a) or (b) hereof,
the indemnified party and the indemnifying party under subsection (a) or (b)
hereof shall contribute to the aggregate Losses (i) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand, and the indemnified party on the other, which resulted in such Loss, with
respect to the statements or omissions which resulted in such Loss, as well as
any other relevant equitable considerations, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law or if the allocation
provided in this clause (ii) provides a greater amount to the indemnified party
than clause (i) above, in such proportion as shall be appropriate to reflect not
only the relative fault but also the relative benefits received by the
indemnifying party and the indemnified party from the offering of the securities
covered by such registration statement as well as any other relevant equitable
considerations. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 2.6(d) were to be determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the preceding sentence of
this Section 2.6(d). 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. The Participating Holders' obligations to contribute as
provided in this subsection (d) are several and not joint and shall be in
proportion to the relative value of their respective Registrable Securities
covered by such registration statement. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim effected without such Person's consent, which consent shall
not be unreasonably withheld. Notwithstanding anything in this subsection (d) to
the contrary, no indemnifying party (other than Parent, the Company and Citadel
Broadcasting) shall be required to contribute any amount in excess of the
proceeds (net of expenses and underwriting discounts and commissions) received
by such party from the sale of the Registrable Securities in the offering to
which the Losses of the indemnified parties relate.
(e) OTHER INDEMNIFICATION. Indemnification and contribution
similar to that specified in the preceding subsections of this Section 2.6 (with
appropriate modifications) shall be given by Parent, the Company, Citadel
Broadcasting and the Participating Holders with respect to any required
registration or other qualification of securities under any federal, state or
blue sky law or regulation of any governmental authority other than the
Securities Act. The indemnification agreements contained in this Section 2.6
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of
16
any investigation made by or on behalf of any indemnified party and shall
survive the transfer of any of the Registrable Securities by any such party.
(f) INDEMNIFICATION PAYMENTS. The indemnification and
contribution required by this Section 2.6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or a Loss is incurred.
2.7 UNLEGENDED CERTIFICATES. In connection with the offering of
any Registrable Securities registered pursuant to this Section 2, Parent shall
(i) facilitate the timely preparation and delivery to the Participating Holders,
the Other Investors and the underwriters, if any, participating in such
offering, of unlegended certificates representing ownership of such Registrable
Securities being sold in such denominations and registered in such names as
requested by the Participating Holders, the Other Investors or such underwriters
and (ii) instruct any transfer agent and registrar of such Registrable
Securities to release any stop transfer orders with respect to any such
Registrable Securities.
2.8 LIMITATION ON SALE OF SECURITIES. Parent hereby agrees that
if it shall previously have received a request for registration pursuant to
Section 2.1 or 2.2 hereof, and if such previous registration shall not have been
withdrawn or abandoned, (i) Parent shall not effect any public or private offer,
sale or distribution of its securities or effect any registration of any of its
equity securities under the Securities Act (other than a registration on Form
S-8 or any successor or similar form which is then in effect), whether or not
for sale for its own account, until a period of 90 days (or such shorter period
as the Forstmann Little Partnerships (if they are participating in such
registration) shall be advised by their managing underwriter) shall have elapsed
from the effective date of such previous registration, and Parent shall so
provide in any registration rights agreements hereafter entered into with
respect to any of its securities; and (ii) Parent shall use its best efforts to
cause each holder of its equity securities purchased from Parent at any time
after the date of this Agreement to agree not to effect any public sale or
distribution of any such securities during such period, including a sale
pursuant to Rule 144 under the Securities Act.
2.9 NO REQUIRED SALE. Nothing in this Agreement shall be deemed
to create an independent obligation on the part of any of the Forstmann Little
Partnerships or Rio Bravo to sell any Registrable Securities pursuant to any
effective registration statement.
3. RULE 144. Parent shall take all actions reasonably necessary to
enable holders of Registrable Securities to sell such securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144, or (b) any similar rule or regulation hereafter
adopted by the Commission including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed by the
Exchange Act; PROVIDED, HOWEVER, that in the case of Rio Bravo, Parent shall
only be required to take such actions following the occurrence of both (i) the
consummation of an IPO and (ii) a Trigger Event; PROVIDED, FURTHER, that if a
Trigger Event occurs more than 180 days prior to the consummation of an IPO,
Parent shall not be required to take any action pursuant to this Section 3 with
respect to Rio Bravo. Upon the request of a Forstmann Little Partnership or Rio
Bravo, Parent will
17
promptly deliver to such holder a written statement as to whether it has
complied with such requirements.
4. AMENDMENTS AND WAIVERS. This Agreement may be amended, modified
or supplemented only by written agreement of the party against whom enforcement
of such amendment, modification or supplement is sought.
5. OTHER INVESTORS. The parties hereto acknowledge and agree that no
Other Investor has any right to request registration of the Common Stock held by
such Other Investor or to participate in any registration of securities by
Parent, other than in accordance with the terms of the stockholder's agreement
or option agreement, as the case may be, between such Other Investor and Parent,
pursuant to which such Other Investor generally may have the right to
participate in any public offering which all or a portion of the shares of
Common Stock owned by the Forstmann Little Partnerships are registered under the
Securities Act.
6. ADJUSTMENTS. In the event of any change in the capitalization of
Parent as a result of any stock split, stock dividend, reverse split,
combination, recapitalization, merger, consolidation, or otherwise, the
provisions of this Agreement shall be appropriately adjusted. Parent agrees that
it shall not effect or permit to occur any combination or subdivision of shares
which would adversely affect the ability of the Forstmann Little Partnerships,
Rio Bravo or the Other Investors to include any Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration. Parent agrees that it will take
all reasonable steps necessary to effect a combination or subdivision of shares
if in the reasonable judgment of the Forstmann Little Partnerships such
combination or subdivision would enhance the marketability of the Registrable
Securities.
7. NOTICE. All notices and other communications hereunder shall be
in writing and, unless otherwise provided herein, shall be deemed to have been
given when received by the party to whom such notice is to be given at its
address set forth below, or such other address for the party as shall be
specified by notice given pursuant hereto:
(a) If to any of the Forstmann Little Partnerships, to it at:
c/o Forstmann Little & Co.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
(b) If to Rio Bravo Enterprise or Xxxxxx, to it at:
18
c/o Citadel Communications Company
0000 Xxxx Xxxx Xxxx.
Xxx Xxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
(c) If to Parent, the Company or Citadel Broadcasting, to it at:
Xxxx Xxxxxx Xxxx, Xxxxx 000
0000 Xxxx Xxxx Xxxx.
Xxx Xxxxx, XX 00000
Attention: President
8. ASSIGNMENT; THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns; provided, however,
that the Other Investors shall have no rights under this Agreement. This
Agreement may not be assigned by Parent or Rio Bravo, other than (i) an
assignment by will or by operation of law of Xxxxxx'x rights or obligations
hereunder by reason of Xxxxxx'x death to Xxxxxx'x estate or Xxxxxx'x heirs,
beneficiaries or devises that are Permitted Transferees (as defined in
Section 3.1 of the Stockholder's Agreement) or (ii) an assignment of Rio Bravo's
rights and obligations hereunder to the New LLC (as defined in Section 5.3 of
the Stockholder's Agreement). Any Forstmann Little Partnership may, at its
election, at any time or from time to time, assign its rights under this
Agreement, in whole or in part, to any purchaser of shares of Common Stock held
by it.
9. REMEDIES. The parties hereto agree that money damages or other
remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that, in addition
to all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being required.
In any action or proceeding brought to enforce any provision of this Agreement
(including the indemnification provisions thereof), the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
10. NO INCONSISTENT AGREEMENTS. Parent will not, on or after the date
of this Agreement, enter into any agreement with respect to its securities which
is inconsistent with the rights granted to the Forstmann Little Partnerships in
this Agreement or otherwise conflicts with the provisions hereof, other than any
customary lock-up agreement with the underwriters in connection with any
Offering effected hereunder, pursuant to which Parent shall agree not to
register for sale, and Parent shall agree not to sell or otherwise dispose of,
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, for a specified period (not to exceed 180 days) following such
Offering. Parent has not previously entered into any agreement with respect to
its securities granting any registration rights to any Person. The rights
granted to the Forstmann Little Partnerships or Rio Bravo hereunder do not in
any way conflict with and are not inconsistent with any other agreements to
which Parent is a party or by
19
which it is bound. Parent further agrees that if any other registration rights
agreement entered into after the date of this Agreement with respect to any of
its securities contains terms which are more favorable to, or less restrictive
on, the other party thereto than the terms and conditions contained in this
Agreement are (insofar as they are applicable) with respect to the Forstmann
Little Partnerships, then the terms and conditions of this Agreement shall
immediately be deemed to have been amended without further action by Parent or
the Forstmann Little Partnerships so that the Forstmann Little Partnerships
shall be entitled to the benefit of any such more favorable or less restrictive
terms or conditions.
11. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not control or otherwise affect the meaning hereof.
12. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights and obligations of the parties hereto shall be
governed by, the laws of the State of New York, without giving effect to the
conflicts of law principles thereof. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of New York and the United States of America located
in the County of New York for any action or proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any action or proceeding relating thereto except in such
courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in
Section 7 hereof shall be effective service of process for any action or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York or the
United States of America located in the County of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
14. INVALIDITY OF PROVISION. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction. If any restriction or provision of this
Agreement is held unreasonable, unlawful or unenforceable in any respect, such
restriction or provision shall be interpreted, revised or applied in a manner
that renders it lawful and enforceable to the fullest extent possible under law.
15. FURTHER ASSURANCES. Each party hereto shall do and perform or
cause to be done and performed all further acts and things and shall execute and
deliver all other agreements, certificates, instruments, and documents as any
other party hereto reasonably may request in
20
order to carry out the intent and accomplish the purposes of this Agreement and
the consummation of the transactions contemplated hereby.
16. ENTIRE AGREEMENT; EFFECTIVENESS. This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings, oral
and written, between the parties hereto with respect to the subject matter
hereof.
21
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized.
FLCC HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Assistant Secretary and
Treasurer
CITADEL COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Assistant Secretary and
Treasurer
CITADEL BROADCASTING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Assistant Secretary
FORSTMANN LITTLE & CO. EQUITY
PARTNERSHIP - VI, L.P.
By: FLC XXXII Partnership
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx,
a general partner
FORSTMANN LITTLE & CO. EQUITY
PARTNERSHIP - VII, L.P.
By: FLC XXXII Partnership
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx,
a general partner
FORSTMANN LITTLE & CO. SUBORDINATED
DEBT AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP - VII, L.P.
By: FLC XXXIII Partnership,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx,
a general partner
FORSTMANN LITTLE & CO. SUBORDINATED
DEBT AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP - VIII, L.P.
By: FLC XXXIII Partnership,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx,
a general partner
RIO BRAVO ENTERPRISE ASSOCIATES, L.P.
By: Rio Bravo, Inc.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxxx X. Xxxxxx
Title:
XXXXXXXX X. XXXXXX
/s/ Xxxxxxxx X. Xxxxxx
----------------------
