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Exhibit 10.11
EXECUTION COPY
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT is
dated as of June 28, 1996, by and among CITADEL COMMUNICATIONS CORPORATION, a
Nevada corporation (the "Company"), ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, a Delaware
corporation ("BFC"), BANK OF AMERICA ILLINOIS (an Illinois banking corporation
f/k/a Continental Bank, N.A., the "Bank"), certain individuals listed on the
Bank Co-Investor Signature Page attached hereto (the "Bank Co-Investors"), ABRY
BROADCAST PARTNERS II, L.P., a Delaware limited partnership ("ABRY"),
ABRY/CITADEL INVESTMENT PARTNERS, L.P., a Delaware limited partnership
("ABRY/CIP"), ▇▇▇▇▇▇▇▇▇▇▇ & CO., INC., a Delaware corporation ("Oppenheimer"),
FINOVA CAPITAL CORPORATION, a Delaware corporation ("FINOVA"), ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (the "Executive"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("CW") and certain members of
management listed on the Management Signature Page attached hereto (the
"Managers"). The Executive and CW sometimes are referred to herein collectively
as "▇▇▇▇▇▇." ▇▇▇▇▇▇ and the Managers sometimes are referred to herein
collectively as "Management". The Bank and the Bank Co-Investors sometimes are
referred to herein collectively as "BofA." BFC, BofA, ABRY, ABRY/CIP and
Oppenheimer sometimes are referred to herein collectively as the "Investors"
and individually as an "Investor." The Investors, FINOVA, and Management
sometimes are referred to herein collectively as the "Stockholders" and
individually as a "Stockholder." Capitalized terms used and not otherwise
defined in this Agreement shall have the meanings ascribed to such terms in
Section 1 hereof.
WHEREAS, upon consummation of the Securities Purchase and
Exchange Agreement, the Stockholders will own, respectively, beneficially and
of record, that number and type of the Company's Equity Securities indicated
opposite each Stockholder's name on Schedule A attached hereto; and
WHEREAS, the Company and the Stockholders desire to enter
into this Agreement for the purposes, among others, of (i) assuring continuity
in the ownership of the Company, (ii) limiting the manner and terms by which
▇▇▇▇▇▇'▇ Stockholder Shares may be transferred and (iii) providing for the sale
of the Company under certain circumstances; and
WHEREAS, certain parties hereto executed and delivered an
Amended and Restated Stockholders Agreement dated as of December 21, 1994 (the
"Previous Stockholders Agreement"), and in connection with the Securities
Purchase and Exchange Agreement, the parties hereto desire to amend and restate
the Previous Stockholders Agreement and are entering into this Agreement for
that purpose; and
WHEREAS, the execution and delivery of this Agreement is a
condition to the closing of the transactions contemplated by the Securities
Purchase and Sale Agreement.
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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 Stockholders Agreement is amended and restated
in its entirety as follows:
1. Definitions. For purposes of this Agreement, the following
terms have the meanings set forth below.
"ABRY" has the meaning set forth in the preamble to this
Agreement.
"ABRY/CIP" has the meaning set forth in the preamble to this
Agreement.
"ABRY Stock" means (i) Shares (as that term is defined in the
Securities Purchase and Exchange Agreement), (ii) Common Stock issued or
issuable upon the conversion of any such Share, (iii) Common Stock issued or
issuable upon the conversion or exchange of any Common Stock described in
clause (ii) above or this clause (iii), (iv) Facility A Notes Conversion Stock
(as that term is defined in the Securities Purchase and Exchange Agreement),
and (v) Equity Securities of the Company issued or issuable with respect to any
Equity Securities referred to in any of clauses (i) through (iv) above or this
clause (v) by way of any stock dividend or stock split, or in connection with a
combination or exchange of shares, recapitalization, merger, consolidation,
reorganization or otherwise. As to any particular securities constituting ABRY
Stock, such securities shall continue to constitute ABRY Stock in the hands of
any permitted transferee thereof, but will cease to constitute ABRY Stock when
they have been disposed of in a Public Sale.
"ABRY Underlying Common Stock" means all ABRY Stock which is
Class A Common Stock. For purposes of this Agreement, any Person who holds any
ABRY Stock which is not Class A Common Stock will be deemed to be the Holder of
the Class A Common Stock obtainable upon the conversion, exercise or exchange
to the fullest extent possible of such ABRY Stock (including the conversion,
exercise or exchange of all other ABRY 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, on or prior to the Maturity
Date of such Facility A Note, shall be deemed to be the Holder of any such
Class A Common Stock by reason of holding such Facility A Note.
"Additional Preferred Stock" means 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 or Series D Preferred Stock.
"Affiliate" of a particular Person means any other Person
that directly or indirectly controls, is controlled by, or is under common
control with such first Person, and, with respect to an individual, such
individual's spouse and descendants (whether natural or adopted) and any trust
solely for the benefit of such individual and/or his or her spouse and/or
descendants. For purposes hereof, each of the Bank, the Bank Co-Investors and
the officers of the Bank shall be deemed
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"Affiliates" of one another. For purposes hereof ABRY and ABRY/CIP shall be
deemed "Affiliates" of one another.
"Agreement" means this Agreement.
"Approved Sale"
(i) prior to a Put Default means:
the sale of the Company, in a single transaction or
a series of related transactions, to one or more Independent Third
Parties (a) pursuant to which such Independent Third Party or Parties
proposes to acquire all or substantially all of the outstanding
Stockholder Shares (whether by merger, consolidation,
recapitalization, reorganization, purchase of the outstanding Equity
Securities or otherwise) or all or substantially all of the
consolidated assets of the Company, (b) which has been approved by
affirmative vote or written consent of not less than two-thirds of the
members of the Board and by holders of a majority of the Underlying
Common Stock, and (c) pursuant to which all holders of Common Stock
and Underlying Common Stock will receive with respect thereto (whether
in such transaction(s) or, with respect to an asset sale, upon a
subsequent liquidation) the same form and amount (adjusted for any
applicable exercise price) of consideration per share of Common Stock
and Underlying Common Stock or, if any holders of any class of Common
Stock or Underlying Common Stock are given an option as to the form
and amount of consideration to be received, all holders of Common
Stock or Underlying Common Stock of such class are given the same
option; and
(ii) following a Put Default means:
the sale of the Company, in a single transaction or
a series of related transactions, to one or more Independent Third
Parties (a) pursuant to which such Independent Third Party or Parties
proposes to acquire all or substantially all of the outstanding
Stockholder Shares (whether by merger, consolidation,
recapitalization, reorganization, purchase of the outstanding Equity
Securities or otherwise) or all or substantially all of the
consolidated assets of the Company, (b) which has been approved by
holders of a majority of the ABRY Underlying Common Stock, and (c)
pursuant to which all holders of Common Stock and Underlying Common
Stock will receive with respect thereto (whether in such
transaction(s) or, with respect to an asset sale, upon a subsequent
liquidation) the same form and amount (adjusted for any applicable
exercise price) of consideration per share of Common Stock and
Underlying Common Stock or, if any holders of any class of Common
Stock or Underlying Common Stock are given an option as to the form
and amount of consideration to be received, all holders of Common
Stock or Underlying Common Stock of such class are given the same
option;
"Bank" has the meaning set forth in the Preamble to this Agreement.
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"Bank Co-Investors" has the meaning set forth in the Preamble
to this Agreement.
"BFC" has the meaning set forth in the Preamble to this
Agreement.
"BFC Stock" means (i) Series A Preferred Stock held by BFC on
the date of this Agreement after giving effect to the "Redemptions" and the
"Reclassification" (as those terms are defined in the Securities Purchase and
Exchange Agreement), (ii) Class A Common Stock issued or issuable upon the
conversion of any Series A Preferred Stock described in clause (i) above, and
(iii) Equity Securities of the Company issued or issuable with respect to any
Equity Securities referred to in any of clauses (i) and (ii) above or this
clause (iii) by way of any stock dividend or stock split, or in connection with
a combination or exchange of shares, recapitalization, merger, consolidation,
reorganization or otherwise. As to any particular securities constituting BFC
Stock, such securities shall continue to constitute BFC Stock in the hands of
any permitted transferee thereof, but will cease to constitute BFC Stock when
they have been disposed of in a Public Sale.
"BFC Underlying Common Stock" means all BFC Stock which is
Class A Common Stock. For purposes of this Agreement, any Person who holds any
BFC Stock which is not Class A Common Stock will be deemed to be the Holder of
the Class A Common Stock obtainable upon the conversion, exercise or exchange
to the fullest extent possible of such BFC Stock (including the conversion,
exercise or exchange of all other BFC 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.
"Board" means the Board of Directors of the Company.
"BofA" has the meaning set forth in the Preamble to this
Agreement.
"BofA Stock" means (i) the BofA Warrants, (ii) Class B Common
Stock held by the BofA Co-Investors on the date hereof after giving effect to
the "Redemptions" and the "Reclassification" (as those terms are defined in the
Securities Purchase and Exchange Agreement), (iii) Class B Common Stock issued
or issuable upon the exercise of the BofA Warrants, (iv) Class A Common Stock
issued or issuable upon the conversion of Class B Common Stock described in
clause (ii) or clause (iii) above, and (v) Equity Securities of the Company
issued or issuable with respect to any Equity Securities referred to in any of
clauses (i) through (iv) above or this clause (v) by way of any stock dividend
or stock split, or in connection with a combination or exchange of shares,
recapitalization, merger, consolidation, reorganization or otherwise. As to any
particular securities constituting BofA Stock, such securities shall continue
to constitute BofA Stock in the hands of any permitted transferee thereof, but
will cease to constitute BofA Stock when they have been disposed of in a Public
Sale.
"BofA Underlying Common Stock" means all BofA Stock which is
Class A Common Stock. For purposes of this Agreement, any Person who holds any
BofA Stock which is not Class A Common Stock will be deemed to be the Holder of
the Class A Common Stock obtainable upon the conversion, exercise or exchange
to the fullest extent possible of such BofA Stock (including
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the conversion, exercise or exchange of all other BofA 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.
"BofA Warrants" means the warrants issued by the Company
pursuant to the Senior Subordinated Note and Warrant Purchase Agreement dated
October 1, 1993 among the Company, Citadel, the Bank and the BofA Co-Investors,
as amended and restated and in effect on the date hereof.
"Call" has the meaning set forth in Section 5.3 hereof.
"Call Closing" has the meaning set forth in Section 5.5
hereof.
"Call Price" has the meaning set forth in Section 5.2
hereof.
"Call Notice" has the meaning set forth in Section 5.3
hereof.
"Call Shares" has the meaning set forth in Section 5.3
hereof.
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company, as amended and in effect on the date hereof
(immediately after the Fifth Amendment and Restatement thereof).
"Citadel" means Citadel Broadcasting Company, a Nevada
corporation and wholly owned Subsidiary of the Company.
"Class A Common Stock" means the voting Class A Common Stock
of the Company, par value $.001 per share.
"Class A Note Agreement" means the Amended and Restated Class
A Note Agreement dated as of the date hereof by and between Citadel and BFC, as
amended and in effect on the date hereof.
"Class B Common Stock" means the nonvoting Class B Common
Stock of the Company, par value $.001 per share.
"Class C Common Stock" means the nonvoting Class C Common
Stock of the Company, par value $.001 per share.
"Common Stock" means, collectively, the Company's Class A
Common Stock, Class B Common Stock and Class C Common Stock, and is sometimes
used to refer to any such Common Stock.
"Company" has the meaning set forth in the Preamble to this
Agreement.
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"Company's First Notice" has the meaning set forth in Section
4.2 hereof.
"Consolidated Cash" means the sum of all cash, amounts in
deposit accounts and securities maturing within six months as shown on the
consolidated balance sheet of the Company prepared and dated as of the
appropriate Determination Date.
"Corporate Overhead" means during any period, the aggregate
of all compensation, traveling, aircraft, entertainment and automobile expenses
of personnel of the Company and Citadel and all other costs and expenses which
are not allocable or are not incurred directly in the operation of any of the
Stations, including, but not limited to (i) the management fee payable to ABRY
Partners, Inc. pursuant to the Management and Consulting Services Agreement
between Citadel and ABRY Partners, Inc., (ii) rent, and (iii) any legal
expenses and auditing fees. For purposes of determining Corporate Overhead (1)
all determinations shall be made with respect to the Company and on a
consolidated basis, (2) references to specific individuals shall be deemed to
include other individuals who succeed to the responsibilities to such
individuals, (3) the term "Station" shall include radio stations owned or
operated by the Company, Citadel or any other Subsidiary, or for which the
Company, Citadel or any other Subsidiary sells advertising, and (4) Corporate
Overhead shall be calculated for the 12-month period ending on the appropriate
Determination Date.
"CW" has the meaning set forth in the Preamble to this
Agreement.
"Date of Receipt" has the meaning set forth in Section 4.2
hereof.
"Debt" means the Company's consolidated indebtedness
(determined in accordance with GAAP consistently applied) as reflected on the
consolidated balance sheet of the Company dated as of the Determination Date.
"Demand Registration Notice" has the meaning set forth in
Section 5.2 hereof.
"Demand Registration" has the meaning set forth in Section
5.2 hereof.
"Determination Date" means (i) in the case of a Put, the last
day of the month immediately preceding the date of any Put Notice, (ii) in the
case of a Call, the last day of the month immediately preceding the date of any
Call Notice, and (iii) in the case of a Look-Back Event, the date of
consummation of the Transaction relating to the Look-Back Event.
"Election Period" has the meaning set forth in Section 3.1
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,
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or otherwise to acquire directly or indirectly, any stock, interest,
participation or security described in clause (i) above.
"Executive" has the meaning set forth in the preamble to this
Agreement.
"Family Group" means for any member of Management, such
member's spouse and descendants (whether natural or adopted) and any trust
solely for the benefit of such member and/or such member's spouse and/or
descendants.
"Facility A Note" has the meaning ascribed to such term in
the Securities Purchase and Exchange Agreement.
"Fair Market Value" means the fair market value on the
Determination Date of the Company's Common Stock outstanding on a Fully Diluted
Basis determined on a going concern basis and assuming a sale of 100% of the
Company's Common Stock on a Fully Diluted Basis between a willing buyer and a
willing seller and taking into account all relevant factors determinative of
value; provided, however, that in the case of a Look-Back Event, "Fair Market
Value" with respect to such Look-Back Event shall be determined in accordance
with Section 5.7 below. Unless otherwise agreed by the Company and the
Holder(s) who are then exercising, or are then (or in the case of a Look-Back
Event, were) subject to, a Repurchase Option, Fair Market Value shall be
determined by an investment banking firm reasonably acceptable to the Company
and the holders of a majority of the Investor Underlying Common Stock
exercising, or subject to, a Repurchase Option (the "Selection Majority
Holders"), which firm shall submit to the Company and the Holders a written
report setting forth such determination. If the Company and the Selection
Majority Holders are unable to agree on an investment banking firm within 5
business days after the Holders Meeting Date, a firm shall be selected by lot
from the top-tier New York-based investment banking firms (other than any
top-tier New York based investment banking firm with whom ABRY has had a
significant relationship or Oppenheimer or any of its Affiliates), after the
Company and the Selection Majority Holders have each eliminated one such firm.
The expenses of such selected firm will be borne by the Company, and the
determination of such firm will be final and binding upon all parties, except
that any Holder may rescind its exercise of a Put after the determination of
Fair Market Value following the exercise of such Put.
"FINOVA" has the meaning set forth in the Preamble to this
Agreement.
"Fully Diluted Basis" refers to the outstanding Common Stock,
assuming the conversion, exercise, exchange and acquisition to the fullest
extent possible of or under all Equity Securities which are directly or
indirectly convertible into, are directly or indirectly exercisable or
exchangeable for, or provide for the acquisition directly or indirectly of,
Common Stock, in each case without regard to any limitation or restriction on
any such conversion, exercise, exchange or acquisition, but in each case other
than (i) any such Equity Security for which the conversion, exercise, exchange
or acquisition price is greater than the fair market value at the time in
question of the Common Stock so issuable (i.e., not assuming the conversion,
exercise, exchange or
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acquisition of any "out of the money" security) or (ii) the conversion of any
Facility A Note on or prior to the Maturity Date of such Facility A Note.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"Holders" has the meaning set forth in Section 4.2 hereof.
"Holders Meeting Date" has the meaning set forth in Section
4.2 hereof.
"Independent Third Party" means any Person who, immediately
prior to the contemplated transaction, does not own in excess of 5% of the
Company's Common Stock on a Fully Diluted Basis (a "5% Owner"), who is not
controlling, controlled by or under common control with any such 5% Owner, and
who is not the spouse or descendent (by birth or adoption) of any such 5% Owner
or a trust for the benefit of such 5% Owner and/or any of such other Persons.
"Investor" and "Investors" have the meanings set forth in the
Preamble to this Agreement.
"Investor Stock" means (i) the BofA Warrants, (ii) Class B
Common Stock held by the BofA Co-Investors on the date hereof after giving
effect to the "Redemptions" and the "Reclassification" (as those terms are
defined in the Securities Purchase and Exchange Agreement), (iii) Class B
Common Stock issued or issuable upon the exercise of the BofA Warrants, (iv)
Class A Common Stock issued or issuable upon the conversion of Class B Common
Stock described in clause (ii) or clause (iii) above, (v) Series A Preferred
Stock held by BFC on the date hereof after giving effect to such Redemptions
and such Reclassification, (vi) Class A Common Stock issued or issuable upon
the conversion of any Series A Preferred Stock described in clause (v) above,
(vii) Series B Preferred Stock held by Oppenheimer on the date of this
Agreement after giving effect to such Redemptions and such Reclassification,
(viii) Class A Common Stock issued or issuable upon the conversion of any
Series B Preferred Stock described in clause (viii) above, (ix) the Shares (as
that term is defined in the Securities Purchase and Exchange Agreement), (x)
Common Stock issued or issuable upon the conversion of any such Share, (xi)
Common Stock issued or issuable upon the conversion or exchange of any Common
Stock described in clause (x) above or this clause (xi), (xii) Facility A Notes
Conversion Stock (as that term is defined in the Securities Purchase and
Exchange Agreement), (xiii) Equity Securities issued or issuable with respect
to any Equity Securities referred to in any of clauses (i) through (xii) above
or in this clause (xiii) 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, and (xiv) for purposes of Section 4
only, (A) Class C Common Stock held by FINOVA on the date of this Agreement
after giving effect to such Redemptions and such Reclassification, (B) Common
Stock issued upon the conversion of Common Stock described in clause (A) above,
and (C) Equity Securities issued or issuable with respect to any Equity
Securities referred to in clause (A) or clause (B) above or in this clause (C)
by way of any stock dividend or stock split, or in connection with a
combination or exchange of shares, recapitalization, merger, consolidation,
reorganization or otherwise. As to any
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particular securities constituting Investor Stock, such securities shall
continue to constitute Investor Stock in the hands of any permitted transferee
thereof, but will cease to constitute Investor Stock when they have been
disposed of in a Public Sale.
"Investor Underlying Common Stock" means all Investor Stock
which is Class A Common Stock. For purposes of this Agreement, any Person who
holds any Investor Stock which is not Class A Common Stock will be deemed to be
the Holder of the Class A Common Stock obtainable upon the conversion, exercise
or exchange to the fullest extent possible of such 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, on or prior to the
Maturity Date of such Facility A Note, shall be deemed to be the Holder of any
such Class A Common Stock by reason of holding such Facility A Note.
"Look-Back Call Price" has the meaning set forth in Section
5.7 hereof.
"Look-Back Event" has the meaning set forth in Section 5.7
hereof.
"Look-Back Fair Market Value" has the meaning set forth in
Section 5.7 hereof.
"Majority Bank Holders" means, at any time, holders of a
majority of the BofA Underlying Common Stock.
"Management" and "Managers" have the meanings set forth in
the preamble to this Agreement.
"Maturity Date" for any Facility A Note has the meaning set
forth in such Facility A Note.
"Offer Notice" has the meaning set forth in Section 3.2
hereof.
"Operating Cash Flow" means for any period, the consolidated
net income of the Company for such period:
(i) plus the sum of the following, to the extent deducted in
determining such net income for such period:
(a) losses from sales, transaction, exchanges and other
dispositions of property not in the ordinary course of
business;
(b) interest, fees or other charges paid or accrued on
indebtedness, including, without limitation, interest on
capitalized leases that is imputed in accordance with GAAP;
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(c) depreciation and amortization of assets;
(d) income taxes which are accrued during such period;
(e) expenses incurred in connection with exchanges of
advertising time for non-cash consideration;
(f) non-cash compensation to employees of the Company; and
(g) extraordinary losses;
(ii) minus the sum of the following, to the extent included in
determining such net income for such period:
(a) revenue received in connection with exchanges of
advertising time for non-cash consideration;
(b) proceeds of any insurance;
(c) gains from sales, transactions, exchanges and other
dispositions of property not in the ordinary course of
business; and
(d) extraordinary gains.
For purposes of determining Operating Cash Flow, (1) all determinations shall
be made with respect to the Company on a consolidated basis, (2) Operating Cash
Flow shall be calculated for the 12-month period ending on the appropriate
Determination Date, and (3) any acquisitions or divestitures during such
12-month period shall be treated on a pro forma basis as though such
acquisition or divestiture, as the case may be, had occurred on the first day
of such 12-month period. Certain terms used in the foregoing definition but not
defined therein shall have the meaning assigned to such terms by GAAP.
"Oppenheimer" has the meaning set forth in the Preamble to this
Agreement.
"Ordinary Call" has the meaning set forth in Section 5.1
hereof.
"Ordinary Call Price" has the meaning set forth in Section 5.1
hereof.
"Ordinary Repurchase Price" means the sum of (a) the greater
of:
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(i) the sum of [8.0 x (OCF + CO)] + CC - D as of the
Determination Date, where:
OCF = Operating Cash Flow
CC = Consolidated Cash
CO = Corporate Overhead, and
D = Debt; and
(ii) the Fair Market Value of the Company, plus
(b) the exercise or conversion price, if any, payable upon
exercise of any options, warrants or other Equity Securities directly or
indirectly convertible into, exercisable, or exchangeable for or permitting the
acquisition of Common Stock which are outstanding as of the Determination Date
(assuming full conversion, exercise, exchange and acquisition as contemplated
by the definition of the term "Fully Diluted Basis").
For purposes of computing the Ordinary Repurchase Price for any Puts
pursuant to the penultimate sentence of Section 4.1, any Facility A Note which
is outstanding on the Determination Date but for which the Maturity Date is
prior to the date upon which the related Put Notice is given will be deemed not
to have been outstanding on the Determination Date but will be deemed instead
to have been converted into Preferred Stock immediately prior to such
Conversion Date, unless such Facility A Note was paid in full on or prior to
its Maturity Date (in which case such Facility A Note will be deemed to have
been outstanding on the Determination Date). In calculating the Ordinary
Repurchase Price, all accounting determinations shall be made in accordance
with GAAP consistently applied.
"Other Stockholders" has the meaning set forth in Section 3.2
hereof.
"Permitted Transfer" has the meaning set forth in Section 3.4
hereof.
"Permitted Transferees" has the meaning set forth in Section
3.4 hereof.
"Preferred Stock" means, collectively, the Company's Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Additional Preferred Stock, and is sometimes used to refer
to any of such Preferred Stock.
"Premium Repurchase Price" has the same meaning as the Ordinary
Repurchase Price, except that "9.0" shall be substituted for "8.0" in clause
(a)(i) of such definition.
"Process Agent" has the meaning set forth in Section 6.14
hereof.
"Pro Rata Share" has the meaning set forth in Section 3.2
hereof.
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"Public Sale" means any sale of Stockholder Shares (i) to the
public pursuant to an offering registered under the Securities Act or (ii)
following a Qualified Public Offering, to the public pursuant to the provisions
of Rule 144 under the Securities Act (or any similar provision then in force).
"Put" has the meaning set forth in Section 4.1 hereof.
"Put Closing" has the meaning set forth in Section 4.4 hereof.
"Put Default" has the meaning set forth in Section 4.7 hereof.
"Put Election Notice" has the meaning set forth in Section 4.3
hereof.
"Put Notice" has the meaning set forth in Section 4.1 hereof.
"Put Price" has the meaning set forth in Section 4.6 hereof.
"Put Shares" has the meaning set forth in Section 4.3 hereof.
"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 Agreement" means the Third Amended and Restated
Registration Rights Agreement of even date herewith by and among the Company,
the Investors and certain other parties thereto, as in effect from time to
time.
"Repurchase" means the repurchase of any of the Equity
Securities of any Investor pursuant to a Repurchase Option.
"Repurchase Fraction" means a fraction, the numerator of which
is the number of shares of Underlying Common Stock to be repurchased pursuant
to a Repurchase Option and the denominator of which is the total number of
shares of Common Stock on a Fully Diluted Basis outstanding as of the
Determination Date.
"Repurchase Majority Holders" means, at any time, any of the
(a) holders of a majority of the BFC Underlying Common Stock, (b) holders of a
majority of the ABRY Underlying Common Stock then in existence and (c) the
Majority Bank Holders.
"Repurchase Notice" means a Put Notice or a Call Notice.
"Repurchase Option" means a Put or a Call.
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"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Securities Purchase and Exchange Agreement" means that certain
Securities Purchase and Exchange Agreement dated as of the date hereof by and
among the Company and the Investors, as in effect from time to time.
"Senior Credit Agreement" means the Loan Agreement by and
between Citadel and FINOVA (f/k/a Greyhound Financial Corporation) dated as of
May 12, 1994, as amended and in effect on the date hereof, as the same may be
further amended from time to time in accordance with the Voting Agreement, or
any other senior debt facility, whether with FINOVA and/or one or more other
lenders, which represents the senior secured debt of Citadel or the Company and
is entered into in accordance with the Voting Agreement.
"Senior Lender" means FINOVA or any other senior lender of the
Company or Citadel pursuant to the Senior Credit Agreement.
"Series A Preferred Stock" means the Series A Convertible
Preferred Stock of the Company, par value $.001 per share.
"Series B Preferred Stock" means the Series B Convertible
Preferred Stock of the Company, par value $.001 per share.
"Series C Preferred Stock" means the Series C Convertible
Preferred Stock of the Company, par value $.001 per share.
"Series D Preferred Stock" means the Series D Convertible
Preferred Stock of the Company, par value $.001 per share.
"Special Call" has the meaning set forth in Section 5.2 hereof.
"Special Call Price" has the meaning set forth in Section 5.2
hereof.
"Stockholder" and "Stockholders" have the meanings set forth in
the Preamble to this Agreement.
"Stockholder Shares" means (i) Investor Stock described in
clauses (i) through (xii) of the definition of the term "Investor Stock," (ii)
Common Stock held by Management on the date hereof, (iii) Common Stock held by
FINOVA on the date hereof, (iv) Common Stock issued or issuable upon the
conversion of Common Stock described in clause (iii) above, (v) options or
other rights to acquire Common Stock issued prior to, on or after the date of
this Agreement to Management, (vi) Common Stock issued or issuable upon the
exercise of any option or other right described in clause (v) above, and (vii)
Equity Securities of the Company issued or issuable with respect to any Equity
Securities referred to in any of clauses (i) through (vi) above or in this
clause (vii) by way of any stock dividend or stock split, or in connection with
a combination or exchange
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of shares, recapitalization, merger, consolidation, reorganization or
otherwise. As to any particular securities constituting Stockholder Shares,
such securities will continue to constitute Stockholder Shares in the hands of
any Permitted Transferee thereof, but will cease to constitute Stockholder
Shares when they have been disposed of in a Public Sale.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which (a) if a corporation, a majority of the total voting
power of Equity Securities entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of the Person or a combination thereof,
or (b) if a partnership, limited liability company, association or other
business entity, a majority of the partnership or other Equity Securities
thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof. For
purposes of this Agreement, a Person or Persons will be deemed to have a
majority ownership interest in a partnership, limited liability company,
association or other business entity if such Person or Persons are allocated a
majority of partnership, limited liability company, association or other
business entity gains or losses or control the managing director or general
partner of such Partnership, association or other business entity.
"Transaction" has the meaning set forth in Section 5.7
hereof.
"Transfer" means to sell, transfer, assign, pledge,
hypothecate or otherwise dispose of any interest in any Stockholder Shares.
"Underlying Common Stock" means all Stockholder Shares which
are Class A Common Stock. For purposes of this Agreement, any Person who holds
any Stockholder Shares which are not Class A Common Stock will be deemed to be
the Holder of the Class A Common Stock obtainable upon the conversion, exercise
or exchange to the fullest extent possible of such Stockholder Shares
(including the conversion, exercise or exchange of all other Stockholder Shares
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, on or prior to the Maturity Date of such Facility A Note, shall be deemed
to be the Holder of any such Class A Common Stock by reason of holding such
Facility A Note.
"Voting Agreement" means the Amended and Restated Voting
Agreement by and among the Company, the Investors, ▇▇▇▇▇▇ and certain other
parties thereto, as in effect from time to time.
"▇▇▇▇▇▇" has the meaning set forth in the Preamble to this
Agreement.
"▇▇▇▇▇▇ Employment Agreement" means the Employment Agreement
by and among the Company, Citadel and the Executive dated as of the date
hereof.
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2. Limited Preemptive Rights.
2.1 First Refusal Rights. Prior to the completion of a
Qualified Public Offering, if the Company or any of its Subsidiaries authorizes
the issuance or sale of any Equity Securities of the Company or such
Subsidiary, the Company shall first deliver a written notice to each holder of
Investor Underlying Common Stock and ▇▇▇▇▇▇ (i) describing in reasonable detail
the Equity Securities being offered, the purchase price thereof, the payment
and other terms of purchase thereof and (ii) offering to sell to such holder a
portion of such Equity Securities equal to the quotient determined by dividing
(1) the number of shares of Investor Underlying Common Stock, or, in the case
of ▇▇▇▇▇▇, Common Stock, held by such holder by (2) the total number of shares
of Investor Underlying Common Stock and the number of shares of Common Stock
held by ▇▇▇▇▇▇. ▇▇▇▇▇▇ and each holder of Investor Underlying Common Stock (or
an Affiliate of any such holder designated by such holder), shall be entitled
to purchase such Equity Securities at the price most favorable to a purchaser
thereof and on the terms most favorable to a purchaser thereof as such Equity
Securities are to be offered to any other Person; provided that, at the request
of any holder of Investor Underlying Common Stock, the Company shall offer to
such holder Equity Securities which have no voting rights and are convertible
into voting securities on the same terms as the Class B Common Stock or the
Class C Common Stock is convertible into Class A Common Stock but which are
otherwise identical (other than for any changes required to avoid a "Regulatory
Problem" as such term is defined in the Certificate of Incorporation) to the
Equity Securities being offered (or, if the Equity Securities to be offered are
nonvoting but convertible into or exercisable or exchangeable for voting
securities, the Company shall offer to any such holder Equity Securities which
are convertible into voting securities on the same terms as the Class B Common
Stock or Class C Common Stock, as applicable, is convertible into Class A
Common Stock). The purchase price for all Equity Securities offered to ▇▇▇▇▇▇
and the holders of Investor Underlying Common Stock shall be payable in cash
or, to the extent otherwise required hereunder, notes issued by such offerees.
2.2 Exercise of Rights. In order to exercise its purchase
rights hereunder, a holder of Investor Underlying Common Stock or ▇▇▇▇▇▇, as
the case may be, must deliver a written notice to the Company within 15 days
after receipt of written notice from the Company, describing such Person's
election hereunder to purchase all or any portion of the Equity Securities so
offered to such Person. If all of the Equity Securities offered to the holders
of Investor Underlying Common Stock and ▇▇▇▇▇▇ are not fully subscribed by such
Persons, the remaining Equity Securities shall be reoffered by the Company to
the Persons purchasing their full allotment upon the terms set forth in this
Section 2, except that any such Person who wishes to purchase any of the
remaining Equity Securities must notify the Company of such Person's intention
to exercise his or its purchase rights within five days after receipt of such
reoffer. The closing of the purchases and sales by the Persons electing to
purchase such Equity Securities shall occur at least 10 days after the
completion of such 15-day (or, if applicable, such 5-day) response period.
Upon the expiration of the offering periods described above
and for a period of 90 days following such expiration, the Company shall be
entitled to sell the Equity Securities which the holders of Investor Underlying
Common Stock and ▇▇▇▇▇▇ have not elected to purchase on terms
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and conditions no more favorable to the purchasers thereof than those offered
to such Persons. Any Equity Securities offered or sold by the Company after
such 90-day period must first be reoffered to ▇▇▇▇▇▇ and the holders of
Investor Underlying Common Stock pursuant to the terms of this Section 2.
2.3 Termination of Preemptive Rights. The rights under this
Section 2 shall terminate upon the consummation of a Qualified Public Offering.
2.4 Exceptions. The foregoing provisions of this Section 2
shall not apply to (i) any issuance of Class A Common Stock or options
exercisable for shares of Class A Common Stock to employees or directors of the
Company or any Subsidiary of the Company pursuant to employee compensation
plans in effect as of the date hereof or approved by the Company's Board of
Directors in accordance with the Voting Agreement, (ii) any issuance of Common
Stock upon conversion or exchange of any other Common Stock, (iii) any issuance
of Common Stock upon the conversion of any Preferred Stock or the exercise of
any BofA Warrant, (iv) any issuance of Common Stock pursuant to a public
offering registered under the Securities Act, or (v) any issuance of any
Facility A Note or any issuance of Preferred Stock upon the conversion of any
Facility A Note, or (vi) any issuance of Preferred Stock upon the conversion of
any other Preferred Stock.
3. Restrictions on Transfers. All Transfers of Stockholder
Shares shall be subject to the terms and conditions of this Section 3.
3.1 Transfer of ▇▇▇▇▇▇'▇ Stockholder Shares. ▇▇▇▇▇▇ will not
Transfer any interest in any Stockholder Shares except pursuant to the
provisions of this Section 3. ▇▇▇▇▇▇ agrees not to consummate any Transfer
(other than a Permitted Transfer or a Transfer permitted by Section 3.8) until
30 days after the delivery to the Company and the other Stockholders of an
Offer Notice unless the parties to the Transfer have been finally determined
pursuant to this Section 3 prior to the expiration of such 30-day period (the
"Election Period").
3.2 First Offer Right. At least 30 days prior to making any
Transfer of any Stockholder Shares (other than a Permitted Transfer or a
Transfer permitted by Section 3.8), ▇▇▇▇▇▇ will deliver a written notice (the
"Offer Notice") to the Company and the holders of Investor Underlying Common
Stock (the "Other Stockholders"). The Offer Notice will disclose in reasonable
detail the proposed number of Stockholder Shares to be transferred and the
proposed terms and conditions of the Transfer. First, the Company may elect to
purchase all, but not less than all, of the Stockholder Shares specified in the
Offer Notice at the price and on the terms specified therein by delivering
written notice of such election to the Executive and the Other Stockholders as
soon as practicable, but in any event within 10 days after the Company's
receipt of the Offer Notice. If the Company has not elected to purchase all of
the Stockholder Shares within such 10-day period, each Other Stockholder may
elect to purchase (directly or through an Affiliate designated by such Other
Stockholder) all, but not less than all, of such Other Stockholder's Pro Rata
Share of the Stockholder Shares specified in the Offer Notice at the price and
on the terms specified therein by delivering written notice of such election to
the Executive as soon as practicable, but in any event within 20 days after
delivery of the Offer Notice. Any Stockholder Shares not elected to be
purchased by the
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end of such 20-day period will be reoffered for the 10-day period prior to the
expiration of the Election Period by ▇▇▇▇▇▇ on a pro rata basis to the Other
Stockholders who have elected to purchase their respective Pro Rata Shares. If
the Company or any Other Stockholders have so elected to purchase Stockholder
Shares from ▇▇▇▇▇▇, the Transfer of such shares will be consummated as soon as
practicable after the delivery of the election notices, but in any event within
15 days after the expiration of the Election Period. In the event that the
Company and the Other Stockholders have not elected to purchase all of the
Stockholder Shares being offered, ▇▇▇▇▇▇ may, within 90 days after the
expiration of the Election Period and subject to the provisions of Section 3.3,
Transfer to one or more third parties at a price no less than the price per
share specified in the Offer Notice and on other terms no more favorable to the
transferees than offered to the Company and the Other Stockholders in the Offer
Notice the number of such Stockholder Shares which the Company and the Other
Stockholders have not elected to purchase. The purchase price specified in any
Offer Notice will be payable solely in cash at the closing of the transaction
or in installments over time, as specified pursuant to the Offer Notice. No
Stockholder Shares may be pledged, hypothecated or in any other manner
encumbered by ▇▇▇▇▇▇ without the prior written consent of the holders of a
majority of the Investor Underlying Common Stock, which consent may be withheld
in each such holder's sole discretion. Each Other Stockholder's "Pro Rata
Shares" will be the percentage which reflects such Other Stockholder's
proportionate ownership of all Investor Underlying Common Stock.
3.3 Participation Rights. The Other Stockholders who have not
elected to purchase any of the Stockholder Shares specified in the Offer Notice
may elect to participate in the contemplated Transfer by ▇▇▇▇▇▇ by delivering
written notice to the Executive within 30 days after delivery of the Offer
Notice. If any Other Stockholders have so elected to participate in such
Transfer, each of ▇▇▇▇▇▇ and such Other Stockholders will be entitled to sell
in the contemplated Transfer, at the same price and on the same terms, Equity
Securities which are, or which are convertible into or exercisable for, shares
of Common Stock and Investor Underlying Common Stock in a quantity equal to the
product of (a) the quotient determined by dividing the number of shares of
Investor Underlying Common Stock and Common Stock, without duplication, held by
such Stockholder by the aggregate number of shares of Investor Underlying
Common Stock and Common Stock held by ▇▇▇▇▇▇ and the Other Stockholders
(including the number of shares of Investor Underlying Common Stock held by
such Stockholder) participating in such sale and (b) the sum of the number of
shares of Common Stock and the number of shares of Underlying Common Stock to
be sold in the contemplated Transfer. The Executive will use reasonable efforts
to obtain the agreement of the prospective transferee to the participation of
the Other Stockholders in any contemplated Transfer and to the inclusion of a
transfer of Investor Stock which is not Class A Common Stock in the
contemplated Transfer, and ▇▇▇▇▇▇ will not Transfer any of such Stockholder
Shares to the prospective transferee if the prospective transferee declines to
allow the participation of the Other Stockholders or the inclusion of the
Investor Stock which is not Class A Common Stock. If any portion of the BofA
Warrants is included in any Transfer of Stockholder Shares under this Section
3.3, the purchase price for the BofA Warrants shall be equal to the full
purchase price determined hereunder for the Stockholder Shares covered by the
portion of the BofA Warrants to be transferred, reduced by the aggregate
exercise price for such shares.
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3.4 Permitted Transferees. The restrictions contained in
Section 3.1 through 3.3 apply only with respect to any Transfer of Stockholder
Shares by ▇▇▇▇▇▇ and do not apply to any Transfer of Stockholder Shares by
▇▇▇▇▇▇ (i) pursuant to a Public Sale or Section 6 hereof, or (ii) pursuant to
applicable laws of descent and distribution or among ▇▇▇▇▇▇'▇ Family Group or
as contemplated by Section 3.8 hereof. Transfers of the type described in
clauses (i) and (ii) above and Transfers by any Stockholder other than ▇▇▇▇▇▇
are referred to collectively herein as "Permitted Transfers" and individually
as a "Permitted Transfer." Prior to any such Permitted Transfer (other than in
a Public Sale), the transferees of such Stockholder Shares will agree in
writing, in form and substance reasonably acceptable to the Company and
delivered to the Company and each of the holders of Investor Underlying Common
Stock, to be bound by the provisions of this Agreement affecting such
Transferring Stockholder and such Stockholder Shares so Transferred. The
restrictions contained in this Section 3 will continue to be applicable to the
Stockholder Shares and to the transferee after any Permitted Transfer to the
extent applicable to such Stockholder Shares and the Transferring Stockholder
prior to such Transfer. Without limiting the foregoing, transferees who
receive Stockholder Shares in accordance with this Section 3.4 shall be deemed
a "Stockholder" (and an "Investor," if the Transferring Stockholder is an
Investor, or a member of "Management," if the Transferring Stockholder is a
member of Management, or a or a "BofA Co-Investor" if the Transferring
Stockholder is a BofA Co-Investor and so on) for purposes of this Agreement and
are referred to collectively herein as "Permitted Transferees".
3.5 Legend. Each certificate for Stockholder Shares will be
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE CONDITIONS SPECIFIED IN THE SECOND AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT DATED AS OF JUNE 28, 1996, BY
AND AMONG THE ISSUER (THE "COMPANY") AND CERTAIN OF ITS
STOCKHOLDERS, AND THE COMPANY RESERVES THE RIGHT TO REFUSE
THE TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE
BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH
CONDITIONS WILL BE FURNISHED BY THE COMPANY TO THE HOLDER
HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST."
3.6 Termination of Restrictions. The provisions of this
Section 3 will terminate upon the consummation of a Qualified Public Offering.
3.7 Transfers in Violation of Agreement. Any Transfer or
attempted Transfer of any Stockholder Shares in violation of any provision of
this Agreement will be void, and the
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Company will not record such Transfer on its books or treat any purported
transferee of such Stockholder Shares as the owner of such shares for any
purpose.
3.8 Permitted Pledge. Notwithstanding the provisions of this
Section 3, ▇▇▇▇▇▇ may pledge any shares of ▇▇▇▇▇▇'▇ Common Stock (a) to the
Company to secure indebtedness to Company incurred by ▇▇▇▇▇▇ in connection with
the purchase of Common Stock by ▇▇▇▇▇▇ from Company and (b) to a reputable
financial institution to secure a loan to ▇▇▇▇▇▇ not to exceed $500,000 in
principal amount at any time outstanding; provided, however, that any such
pledge is made expressly subject to the terms, restrictions and conditions
contained in this Agreement and the pledgee executes and delivers to the
holders of Investor Underlying Common Stock prior thereto the agreement
required pursuant to Section 3.4 above.
4. Put Arrangements.
4.1 Basic Put Rights. At any time beginning August 1, 2000,
any of the Repurchase Majority Holders shall have the right to require the
Company to repurchase all or any portion of the Preferred Stock or BofA
Warrants held by such Investor(s) (the "Put") at the Put Price by delivering a
written notice to the Company specifying the quantity of such securities to be
purchased (the "Put Notice"). Subject to Section 4.3 hereof (regarding Puts
deemed to have been exercised as of the Date of Receipt), other than a Put
exercised by the holders of a majority of the ABRY Underlying Common Stock, no
additional Put(s) shall be exercised within the one-year period beginning on
the Date of Receipt. For so long as the Bank or any Affiliate thereof
(excluding from the definition of "Affiliate" for such purposes the last two
sentences of such definition) holds the BofA Warrants, the BofA Co-Investors
and the Class B Common Stock held by the BofA Co- Investors shall be subject to
the provisions of this Section 4 and the Class B Common Stock held by the BofA
Co-Investors shall be treated the same as the BofA Warrants held by the Bank or
such Affiliate for all purposes of this Section 4, except that the reduction
described in clause (b) of Section 4.6 shall not apply to such Class B Common
Stock. Notwithstanding the foregoing, if at any time (a) ABRY delivers written
notice to the Company requesting the Company to terminate the Executive's
employment pursuant to the ▇▇▇▇▇▇ Employment Agreement and (b) the Company
fails within 20 business days to terminate the Executive's employment in
accordance with the terms thereof, then ABRY and ABRY/CIP shall be entitled to
exercise a Put. Furthermore, in the event of a Put pursuant to the immediately
preceding sentence, (i) notwithstanding the provisions of Section 4(g) of the
Securities Purchase and Exchange Agreement, neither ABRY nor ABRY/CIP shall
have any further obligation to make any Facility A Advance and (ii)
notwithstanding the provisions of any Facility A Note, none of the Facility A
Notes thereafter shall be converted into Preferred Stock.
4.2 The Company's First Notice. Within five business days
after receipt (the "Date of Receipt" for purposes of this Section 4) of the Put
Notice, the Company shall deliver a written notice (the "Company's First
Notice") to all holders of Investor Stock which is Preferred Stock, a BofA
Warrant or held by FINOVA (with respect to such Put, the "Eligible Holders")
informing them of the receipt of the Put Notice, the Date of Receipt, the
quantity of Investor Stock requested to be purchased pursuant to the Put
Notice, the number of shares of Investor Underlying
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Common Stock then existing with respect to outstanding shares of Preferred
Stock, BofA Warrants and shares held by FINOVA and number of shares of Common
Stock on a Fully Diluted Basis in existence at the close of business on the Date
of Receipt. The Company's First Notice will also specify a place, date and time
for a meeting of all Eligible Holders who deliver a Put Notice and all Eligible
Holders who deliver a Put Election Notice pursuant to Section 4.3 (collectively,
the "Put Holders") to participate in the selection of an investment banking firm
for purposes of determining Fair Market Value, which date (the "Holders Meeting
Date") shall not be less than five business days nor more than 30 days after the
Date of Receipt.
4.3 Put Election. Within 10 business days after delivery of
the Company's First Notice, any Eligible Holder who desires to Put any
Preferred Stock, BofA Warrants or Investor Stock which is held by FINOVA shall
deliver written notice of such election to the Company indicating the number,
class and type of such Equity Securities such Eligible Holder elects to sell
(the "Put Election Notice"). By timely delivery of such Put Election Notice,
the Eligible Holder shall be deemed for all purposes of this Section 4 to have
exercised a Put as of the Date of Receipt of the Put Notice giving rise to the
Company's First Notice. All shares of Preferred Stock, BofA Warrants or
Investor Stock which is held by FINOVA with respect to which a Put has been
exercised are referred to herein collectively as the "Put Shares."
4.4 Put Closing. Upon the delivery of the Put Notice and all
Put Election Notices, the Company and the Put Holders shall in good faith
promptly determine the Put Price as provided in this Agreement, and subject to
the provisions hereof, within 10 days after the determination of the Put Price,
the Company will purchase and each Put Holder will sell the number of such Put
Holder's Put Shares specified in such Put Holder's Put Notice or Put Election
Notice at a time and place mutually agreeable to the Company and the Selection
Majority Holders (the "Put Closing").
4.5 Payment of Put Price. At the Put Closing, each Put Holder
shall deliver to the Company certificates representing such Put Holder's Put
Shares to be Repurchased by the Company and the Company shall deliver to such
Put Holder the Put Price for such Put Shares by cashier's or certified check
payable to such Put Holder or by wire transfer of immediately available funds
to an account designated by such Put Holder to the extent any such Repurchase
for cash is not prohibited (either directly or by prohibition of distributions
from Citadel to the Company) by (i) the provisions of applicable state law,
(ii) the provisions of the Senior Credit Agreement, the Class A Note Agreement
or the Voting Agreement or (iii) the terms and provisions of any refinancing of
the principal amount outstanding pursuant to the Senior Credit Agreement at the
time of such refinancing and the note(s) issued pursuant to the Senior Credit
Agreement at the time of such refinancing, to the extent any such refinancing
does not increase the principal amount which would otherwise then be
outstanding under the Senior Credit Agreement and the related note(s) by more
than $500,000; provided that such Put Holder shall be entitled to rescind any
portion of the exercised Put if any portion of the Put Price for such Put
Holder's Put Shares is not paid in cash during the 10- day period described in
Section 4.4. The Company agrees to (x) use best efforts, and to cause Citadel
to use best efforts, to request after the exercise of a Put that the Senior
Lender, the lenders under the Class A Note Agreement, and any lender under any
refinancing permitted pursuant to clause (iii) in the immediately preceding
sentence, allow the Company to pay the Put Price for all
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Put Shares in full (and allow Citadel to make distributions to the Company for
said purpose) within 10 days after determination of the Put Price. If the
Company is not able to Repurchase all of the Put Shares, the Company shall
Repurchase the maximum number of Put Shares that it has the funds and is legally
entitled to Repurchase, pro rata from each Put Holder on the basis of the number
of shares of Underlying Common Stock held by each Put Holder. At any time
thereafter when additional funds become actually and legally available to the
Company for the Repurchase of its capital stock, such funds will immediately be
used to purchase the balance of the Put Shares (or as much of such balance as
may be Repurchased with such available funds, allocated as set forth in the
immediately preceding sentence), provided, however, that (a) with respect to any
portion of the Put Price to be paid within one year after the Date of Receipt,
the price to be paid for Put Shares shall be increased by interest accrued on
such amount, from and including the Date of Receipt through and including the
date such price is paid, at the Prime Rate of interest as published in the
"Money Rates" Section of the Wall Street Journal from time to time and (b) with
respect to any portion of the Put Price to be paid at any time after one year
after the Date of Receipt, the price to be paid for Put Shares shall be the
greater of the Put Price determined in connection with the original
Determination Date and the Put Price which would have been payable if the
Ordinary Repurchase Price was determined as of the last day of the Company's
fiscal quarter most recently ended prior to or upon the date when such
additional funds became actually and legally available for such Repurchase.
4.6 Determination of Put Price. Subject to Section 4.8 below,
the "Put Price" for shares of the Preferred Stock, BofA Warrants or shares of
Investor Stock held by FINOVA to be repurchased shall mean the sum of (a) the
product of (i) the Ordinary Repurchase Price multiplied by (ii) the Repurchase
Fraction, less (b) in the case of any BofA Warrants, the exercise price, if
any, payable upon the exercise of such BofA Warrant.
4.7 Put Default. In the event of the failure of the Company
within 180 days of the Company's receipt of the Put Notice to pay in full the
Put Price for all ABRY Stock pursuant to a Put with respect to the ABRY Stock
(a "Put Default"), the holders of a majority of the ABRY Underlying Common
Stock shall have certain affirmative rights in connection with an Approved Sale
as set forth in Section 6 hereof.
4.8 Termination of Put Rights. The rights to exercise a Put
hereunder shall terminate upon the consummation of a Qualified Public Offering.
5. Call Options.
5.1 Ordinary Call. At any time beginning August 1, 2000 the
Company may, at its option (the "Ordinary Call"), require all holders of
Preferred Stock and BofA Warrants to sell to the Company all, but not less than
all, of the Preferred Stock and BofA Warrants held by such holders at the
Ordinary Call Price. Subject to Section 5.7 below, the "Ordinary Call Price"
for shares of Preferred Stock or BofA Warrants to be Repurchased pursuant to
the Ordinary Call shall be sum of (a) the product of (i) the Ordinary
Repurchase Price multiplied by (ii) the Repurchase Fraction, less (b) in the
case of any BofA Warrants, the exercise price, if any, payable upon the
exercise of such BofA Warrants. For so long as the Bank or any Affiliate
thereof (excluding from
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the definition of "Affiliate" for such purposes the last two sentences of such
definition) holds the BofA Warrants, the BofA Co-Investors and the Class B
Common Stock held by the BofA Co-Investors shall be subject to the provisions of
this Section 5 and the Class B Common Stock held by the BofA Co-Investors shall
be treated the same as BofA Warrants held by the Bank or such Affiliate for all
purposes of this Section 5, except that the reductions described in clause (b)
above and clause (b) of Section 5.2 shall not apply to such Class B Common
Stock.
5.2 Special Call. Upon receipt of notice (the "Demand
Registration Notice") of a demand for registration of Investor Underlying
Common Stock pursuant to Section 2 of the Registration Agreement (a "Demand
Registration"), the Company may, at its option (the "Special Call"), require
the party or parties requiring such Demand Registration to sell to the Company
all, but not less than all, of the Investor Underlying Common Stock identified
in the Demand Registration Notice as the Investor Underlying Common Stock to be
registered pursuant to such Demand Registration, at the Special Call Price. The
"Special Call Price" for shares of Investor Underlying Common Stock to be
repurchased pursuant to the Special Call shall be sum of (a) the product of (i)
the Premium Repurchase Price multiplied by (ii) the Repurchase Fraction, less
(b) in the case of any BofA Warrants, the exercise price, if any, payable upon
the exercise of such BofA Warrants. The term "Call Price" shall mean the
Ordinary Call Price or the Special Call Price, as the case may be.
5.3 Call Procedure. If the Company elects to exercise the
Ordinary Call or the Special Call (each, a "Call"), the Company shall deliver
written notice (the "Call Notice") of its exercise of the Call to each holder
of Investor Underlying Common Stock. The "Call Holders" refers to the Persons
which are subject to any particular Call. In the case of the Special Call, the
Call Notice shall be delivered to each Call Holder no later than five business
days after the Company's receipt of the Demand Registration Notice. The Call
Notice shall indicate whether the Call being exercised is an Ordinary Call or a
Special Call, the quantity of Investor Underlying Common Stock subject to the
Call (collectively, the "Call Shares"), the number of shares of Investor
Underlying Common Stock then existing with respect to the Call Shares and the
number of shares of Common Stock on a Fully Diluted Basis in existence at the
close of business on the date of the Call Notice. The Call Notice shall also
specify a Call Holders Meeting Date (which shall not be less than 10 business
days after the date of the Call Notice) for a meeting of the Call Holders to
participate in the selection of an investment banking firm for purposes of
determining Fair Market Value.
5.4 Call Election. Within 10 business days after delivery of
the Call Notice, any Holder of Investor Underlying Common Stock who desires to
participate in the Special Call shall deliver written notice of such election
to the Company (the "Call Election Notice"). By timely delivery of such Call
Election Notice, the Holder shall be deemed for all purposes of this Section 5
to be subject to such Special Call as if such Holder had been the party or one
of the parties requiring the applicable Demand Registration.
5.5 Call Closing. Upon delivery of the Call Notice, the
Company and the Call Holders shall in good faith promptly determine the Call
Price and in not less than 10 nor more than 30 days after determination of the
Call Price, the Company shall purchase and each Call Holder shall
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23
sell such Call Holder's Call Shares at a time and place mutually agreeable to
the Company and the Selection Majority Holders (the "Call Closing").
5.6 Payment of Call Price. At the Call Closing, each Call
Holder shall deliver to the Company certificates representing the Call Holder's
Call Shares to be Repurchased by the Company and the Company shall deliver to
the Call Holder the Call Price for such Call Shares by cashier's or certified
check payable to the Call Holder or by wire transfer of immediately available
funds to an account designated by the Call Holder. Should the Company for any
reason not deliver the Call Price to any Call Holder within 10 days after
determination of the Call Price, the Call shall be null and void as to such
Call Holder.
5.7 Look-Back Provisions. If within one year following the
Call Closing, (a) there is a Change of Control or a public offering of any of
the Company's Equity Securities registered under the Securities Act (each, a
"Transaction"), or the Company takes any actions intended to result in a Change
of Control or a public offering (for example, entering into a letter of intent
or negotiations with a potential purchaser of the Company's assets or capital
stock, or retaining an investment banking firm for purposes of a public
offering) (a "Look-Back Event") and (b) the Fair Market Value determined by or
in relation to any such Transaction (including for this purpose (x) the payment
of the Call Price to the Call Holders, and (y) the payment of any Put Price by
the Company and the aggregate fair market value of all dividends and
distributions declared or paid by the Company to its stockholders from the
Determination Date of the Call Price to and including the date of the
consummation of such Transaction) (the "Look-Back Fair Market Value") exceeds
the Fair Market Value used in the determination of the Call Price for such
exercise of the Call, the Call Holders shall be entitled to receive the benefit
of such higher valuation for the Call Shares sold pursuant to the Call. The
Call Price of the Call Shares sold pursuant to the Call shall be redetermined
by substituting the Look-Back Fair Market Value for the Fair Market Value
originally used in determination of the Call Price for such exercise of the
Call (the "Look-Back Call Price"). The excess, if any, of (i) the Look-Back
Call Price over (ii) the Call Price received by the Holders upon exercise of
the Call shall be paid to Call Holders who had previously sold securities to
the Company pursuant to such Call immediately upon consummation of any such
Transaction.
5.8 Voidability of the Ordinary Call. Notwithstanding any
other provision of this Agreement, the Ordinary Call shall become null and void
with respect to any Call Shares upon (a) the conversion to Common Stock of any
such Call Shares which are shares of Preferred Stock, or (b) the exercise of
any Call Shares which are BofA Warrants, and the Ordinary Call shall be null
and void with respect to any Investor Underlying Common Stock which is issued
upon such conversion (and shall be null and void with respect to all Class B
Common Stock held by the BofA Co-Investors, in the case of an exercise
described in clause (b) above).
5.9 Termination of Call Rights. The Company's rights to
exercise any Call hereunder shall terminate upon the consummation of a
Qualified Public Offering.
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24
6. Sale of the Company.
6.1 In the event of an Approved Sale, each Stockholder agrees
to (i) consent to and raise no objections against the Approved Sale or the
process pursuant to which the Approved Sale was arranged, (ii) waive any
dissenter's rights and other similar rights, and (iii) sell its Stockholder
Shares, if the Approved Sale is structured as a sale of Equity Securities, on
the terms and conditions of the Approved Sale. Each Stockholder will take all
commercially reasonable actions as directed by the Board (or, following a Put
Default, as directed by holders of a majority of the ABRY Underlying Common
Stock) in connection with the consummation of any Approved Sale, including
without limitation executing the applicable purchase agreement and granting
identical indemnification rights; provided, that the liability of each
Stockholder shall be no greater than the dollar amount of the proceeds received
by such Stockholder in connection with such Approved Sale. Subject to the
proviso in the immediately preceding sentence, each Stockholder required to
make indemnification payments in connection with any Approved Sale shall have a
right to recover from all the other Stockholders to the extent that the amount
required to be paid by such Stockholder was disproportionate to the proportion
of the Common Stock or Underlying Common Stock (without duplication) held by
such Stockholder as compared to the total Common Stock on a Fully Diluted Basis
immediately prior to the consummation of such Approved Sale.
6.2 If the Company or the holders of the Company's securities
enter into any negotiation or transaction for which Rule 506 (or any similar
rule then in effect) under the Securities Act may be available with respect to
such negotiation or transaction (including a merger, consolidation or other
reorganization), the Stockholders who are not accredited investors (as such
term is defined in Rule 501) will, at the request of the Company, appoint a
purchaser representative (as such term is defined in Rule 501) reasonably
acceptable to the Company. If any Stockholder appoints a purchaser
representative designated by the Company, the Company will pay the fees of such
purchaser representative, but if any Stockholder declines to appoint the
purchaser representative designated by the Company such holder will appoint
another purchaser representative (reasonably acceptable to the Company), and
such holder will be responsible for the fees of the purchaser representative so
appointed.
6.3 All Stockholders will bear their pro rata share (based,
without duplication, upon the number of shares of Common Stock on a Fully
Diluted Basis immediately prior to the consummation of such Approved Sale) of
the reasonable costs of any sale of Stockholder Shares pursuant to an Approved
Sale to the extent such costs are incurred for the benefit of or on behalf of
the Company or all selling Stockholders and are not otherwise paid by the
acquiring party or paid or payable by the Company pursuant to the Securities
Purchase and Exchange Agreement. Costs incurred by any Stockholder on its own
behalf will not be considered costs of the transaction hereunder.
6.4 Upon the occurrence of a Put Default, a Person designated
by the holders of a majority of the ABRY Underlying Common Stock (the "ABRY
Representative") shall have the right to (i) solicit offers from and make
presentations and proposals to prospective buyers of the Company, (ii)
disseminate information regarding the Company, including any financial
information,
-24-
25
marketing pieces or offering memoranda, for the purposes of arranging a sale of
the Company, (iii) enter into negotiations and/or agreements regarding the
potential sale of the Company, and (iv) hire an investment banking firm to
handle any or all of the foregoing; provided, that ABRY shall have no interest,
whether direct or indirect, in any such prospective buyers. In furtherance of
this Section 6.4, the Company agrees that it will (a) provide access to the
ABRY Representative to the books and records of the Company (including access
to the Company's personnel) to enable the ABRY Representative to perform the
responsibilities set forth in clauses (i), (ii) and (iii) above, (b) use its
best efforts to cause the Company's management to participate fully in the sale
process, including, without limitation, the preparation and delivery of any
presentations to buyers and (c) pay all expenses incurred by the Company or the
ABRY Representative in connection with the foregoing clauses (a) and (b) and
the immediately preceding sentence. The Executive, for so long as he is
employed by the Company or any of its Subsidiaries, agrees to participate fully
in the sale process, including, without limitation, the preparation and
delivery of any such presentations to buyers.
6.5 This Section 6 shall automatically terminate upon a
Qualified Public Offering.
7. Miscellaneous.
7.1 Remedies. Each holder of Stockholder Shares will have all
rights and remedies set forth in this Agreement, the Certificate of
Incorporation and all rights and remedies which such holders have been granted
at any time under any other agreement or contract and all of the rights which
such holders have under any law. Any Person having any rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, without posting a bond or other security, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
7.2 Consent to Amendments. Except as otherwise provided
herein, no modification, amendment or waiver of any provision of this Agreement
will be effective against the Company or the Stockholders unless such
modification, amendment or waiver is approved in writing by the Company, ▇▇▇▇▇▇
(for so long as he holds any Common Stock) and each of the Repurchase Majority
Holders, respectively; provided, however, that no amendment or waiver with
respect to any provision of Section 2 or Section 3 hereof that would adversely
affect any rights or benefits of FINOVA hereunder shall be effective as to
FINOVA unless also approved in writing by FINOVA. The failure of any party to
enforce any of the provisions of this Agreement will in no way be construed as
a waiver of such provisions and will not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms. No amendment to Section 6 of this Agreement that would
materially and adversely affect Management shall be made without the prior
written consent of the Executive.
7.3 Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by any party
in connection herewith will survive the execution and delivery of this
Agreement, regardless of any investigation made by any party.
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26
7.4 Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any party of the parties hereto will bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, and whether or not any express assignment has
been made, the provisions of this Agreement which are for any Stockholder's
benefit as a purchase or holder of Stockholder Shares are also for the benefit
of, and enforceable by, any subsequent holder of such Stockholders Shares.
7.5 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
7.6 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
7.7 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
7.8 Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally to the recipient one business day after the date when sent to the
recipient by reputable express courier service (charges prepaid) or five
business days after the date when mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such notice,
demands and other communications will be sent to the Purchaser and to the
Company at the addresses indicated below:
If to the Company:
Citadel Communications Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With a copy (which will not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
-26-
27
If to a Stockholder:
To the respective
address set forth on
the Schedule A attached
to this Agreement,
including any copies to
be provided in accordance
with such Schedule A.
or to such other address or to the attention of such Person as the recipient
party has specified by prior written notice to the sending party.
7.9 No Third-Party Beneficiaries. This Agreement will not
confer any rights or remedies upon any Person other than the Company and the
Stockholders and their respective successors and permitted assigns.
7.10 Entire Agreement. This Agreement (including the
documents referred to herein) 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 Previous
Stockholders Agreement.
7.11 Construction. The language used in this Agreement will
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction will be applied against any party.
Any reference to any federal, state, local, or foreign statute or law will be
deemed also to refer to text requires otherwise. The use of the word
"including" in this Agreement is intended by the parties to be by way of
example rather than limitation.
7.12 Incorporation of Schedules. The Schedules identified in
this Agreement are incorporated herein by reference and made a part hereof.
7.13 Governing Law. The General Corporation Law of the State
of Nevada will govern all issues concerning the relative rights of the Company
and its stockholders. All other questions concerning the construction, validity
and interpretation of this Agreement and the schedules hereto will be governed
by the internal law, and not the law of conflicts, of the State of Illinois.
7.14 Submission to Jurisdiction. Each of the parties to this
Agreement submits to the jurisdiction of any state or federal court sitting in
either of Chicago, Illinois, Boston, Massachusetts, Nevada or Arizona in any
action or proceeding arising out of or relating to his Agreement, agrees that
all claims in respect of the action or proceeding may be heard and determined
in any such court, and agrees not to bring any action or proceeding arising out
of or relating to this Agreement in any other court. Each of the parties to
this Agreement waives any
-27-
28
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety, or other security that might be required
of any other party with respect thereto. Each party to this Agreement appoints
CT Corporation System (the "Process Agent"), with addresses of ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ and Suite 1601, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, as its agent to receive on its behalf service of
copies of the summons and complaint and any other process that might be served
in the action or proceeding. Any party to this Agreement may make service on
any other party by sending or delivering a copy of the process (a) to the party
to be served at the address and in the manner provided for the giving of
notices in Section 7.8 or (b) to the party to be served in care of the Process
Agent at the address and in the manner provided for the giving of notices in
Section 7.8. Nothing in this Section, however, will affect the right of any
party to serve legal process in any other manner permitted by law. Each party
agrees that a final judgment in any action or proceeding so brought will be
conclusive and may be enforced by suit on the judgment or in other manner
provided by law.
7.15 Bank Action on behalf of Bank Co-Investors. Each of the
parties hereto agrees that Bank, or any Affiliate thereof (excluding from the
definition of "Affiliate" for such purposes the last two sentences thereof)
holding any Stockholder Shares, may exercise the rights of the Bank
Co-Investors for all Stockholders Shares initially issued to the Bank
Co-Investors.
7.16 FCC Matters. Notwithstanding any provision contained
herein to the contrary, no party hereto may exercise any of its rights or
remedies hereunder, or take any actions permitted hereby, if prior thereto the
Company receives a written opinion from its nationally recognized FCC counsel
that after consultation with the staff of the Federal communications Commission
("FCC") such exercise or action will violate the Communication Act of 1934 or
the rules, regulations, or policies promulgated thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written
* * * * *
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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SIGNATURES PAGES FOR SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
CITADEL COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: President
--------------------------
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Executive Vice President
--------------------------
BANK OF AMERICA ILLINOIS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Managing Director
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Managing Director
--------------------------
FINOVA CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Group Vice President
--------------------------
30
ABRY BROADCAST PARTNERS II, L.P.
By: ABRY CAPITAL, L.P.
Its General Partner
By: ABRY HOLDINGS, INC.
Its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------
Title: Attorney-in-Fact
------------------
ABRY/CITADEL INVESTMENT PARTNERS, L.P.
By: ABRY CAPITAL, L.P.
Its General Partner
By: ABRY HOLDINGS, INC.
Its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Title: Attorney-in-Fact
--------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
-30-
31
BANK CO-INVESTORS SIGNATURE PAGE
*
--------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
*
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
*
--------------------------------
M. ▇▇▇ ▇'▇▇▇▇▇
*
--------------------------------
Ford ▇. ▇▇▇▇▇▇▇▇▇
*
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
*
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
*
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇, ▇▇.
*
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Attorney-in-Fact
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MANAGEMENT SIGNATURE PAGE
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
-32-
33
SCHEDULE A OF THE
AMENDED AND RESTATED STOCKHOLDERS'S AGREEMENT
SHARES OF CLASS A
COMMON STOCK ON A
NAME SHARES FULLY DILUTED BASIS
---- ------ -------------------
ABRY Broadcast Partners II, L.P. 1,473,857.741 Shares of Series C 2,820,279.793
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ Preferred Stock and
Yudkoff 1,346,422.052 Shares of Series D
18 Newbury Street Preferred Stock
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy (which will not
constitute notice) to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABRY Broacast Partners II, L.P. 182,162.193 Shares of Series C 348,573.907
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ Preferred Stock and 166,411.714
Yudkoff Shares of Series D Preferred
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy (which will not
constitute notice) to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
34
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company 746,411.860 Shares of Series A 746,411.860
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Preferred Stock
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy (which will not
constitute notice) to:
▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Sears Tower, Suite 5800
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bank of America Illinois Warrant to Purchase 138,100.993 138,100.993
Attn: ▇▇▇ ▇▇▇▇▇▇▇ Shares of Class B Common Stock
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy (which will not
constitute notice) to:
▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Sears Tower, Suite 5800
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to any of:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 8,042.814 Shares of Class B 8,042.814
Common Stock
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,511.822 Shares of Class B 4,511.822
Common Stock
M. ▇▇▇ ▇'▇▇▇▇▇ 4,119.490 Shares of Class B 4,119.490
Common Stock
Ford ▇. ▇▇▇▇▇▇▇▇▇ 784.665 Shares of Class B 784.665
Common Stock
35
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 588.499 Shares of Class B 588.499
Common Stock
▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇, ▇▇. 392.332 Shares of Class B 392.332
Common Stock
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 392.332 Shares of Class B 392.332
Common Stock
With a copy (which will not
constitute notice) to:
▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Sears Tower, Suite 5800
Chicago, Illinois 60606
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc. 17,200.724 Shares of Series B 17,200.724
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Preferred Stock
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy (which will not
constitute notice) to:
▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
36
FINOVA Capital Corporation 74,488.000 Shares of Class C
Attn: Vice President Law Common Stock 74,488.000
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With copies (which will not
constitute notices) to:
FINOVA Capital Corporation
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 756,225.000 Shares of Class A 756,225.000
▇▇▇▇▇▇ ▇▇▇▇▇▇ Common Stock
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy (which will not
constitute notice) to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 11,820.000 Shares of Class A 11,820.000
Common Stock
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 20,994.000 Shares of Class A 20,994.000
Common Stock
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
TOTAL 4,952,926.231