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Exhibit 9
VOTING TRUST AGREEMENT
This VOTING TRUST AGREEMENT is made as of March 17, 1997, by and
among Citadel Communications Corporation, a Nevada corporation (the "Company"),
ABRY BROADCAST PARTNERS II, L.P., a Delaware limited partnership ("ABRY"),
ABRY/CITADEL INVESTMENT PARTNERS, L.P., a Delaware limited partnership
("ABRY/CIP"), ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (together with his successors-in-interest as
trustee, the "Trustee"), as the initial Trustee hereunder, and J. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, each an initial Back-Up Trustee hereunder. ABRY and
ABRY/CIP are collectively referred to herein as the "Stockholders". Certain
capitalized terms used herein are defined in Section 4.1.
WHEREAS, the Company and certain other Persons are parties to, and the
Stockholders are express third-party beneficiaries of, that certain Third
Amended and Restated Voting Agreement dated as of the date hereof (as in effect
from time to time, the "Voting Agreement"); and
WHEREAS, the Company, the Stockholders and certain other Persons have
entered into that certain Securities Purchase and Exchange Agreement dated as
of June 28, 1996, as amended through and in effect on the date hereof (as in
effect from time to time, the "Securities Purchase Agreement"), that certain
Second Amended and Restated Stockholders Agreement, dated as of June 28, 1996,
as amended through and in effect on the date hereof (as in effect from time to
time, the "Stockholders Agreement"), that certain Third Amended and Restated
Registration Rights Agreement, dated as of June 28, 1996, as amended through
and in effect on the date hereof (as in effect from time to time, the
"Registration Rights Agreement"), and that certain letter agreement dated as of
March 17, 1997 pursuant to which the Stockholders agreed to enter into this
Voting Trust Agreement and deposit their Shares hereunder (as in effect from
time to time, the "March 1997 Letter Agreement").
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and for the mutual agreements
contained herein, the parties hereto agree as follows:
ARTICLE I
VOTING TRUST
1.1 CREATION OF VOTING TRUST. Subject to the terms and conditions of
this Agreement, a voting trust (the "Voting Trust") is hereby created and
established in accordance with Section 78.365 of the Nevada Revised Statutes.
The Trustee accepts the trust created by this Agreement and agrees to its
appointment his Trustee (with all attendant rights and duties hereunder). Upon
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execution of this Agreement by all the parties hereto, the Trustee shall
file an executed counterpart of this Agreement (and of every supplemental or
amendatory agreement) at the Company's registered office in the State of Nevada.
The copy of this Agreement so filed shall be open to inspection at any
reasonable time by any stockholder of the Company, the holder of any Voting
Trust Certificate(s) or any holder of a beneficial interest in the Voting Trust,
in person or by agent or attorney, as provided in Section 78.365 of the Nevada
Revised Statutes. The Trustee shall also maintain, or cause to be maintained,
such other records and books as are necessary or appropriate to enable the
Trustee to carry out the terms and provisions of this Agreement. By his
execution and delivery of this Agreement, each of the initial Trustee and the
initial Back-Up Trustees certifies to the Company that he has no familial or
extra-trust business relationship (within the meaning of the rules and policies
of the FCC under the Communications Act) with any Stockholder or any Affiliate
of any Stockholder.
1.2 DEPOSIT OF SHARES; VOTING TRUST CERTIFICATES.
(a) Upon execution and delivery of this Agreement by the parties
hereto, each of the Stockholders shall deposit with the Trustee certificates
representing all of the outstanding Capital Stock then owned by such
Stockholder. The Stockholders shall deposit additional shares of Capital Stock
with the Trustee from time-to-time as necessary to ensure that the Shares
subject hereto at all times represent all of the shares of Capital Stock owned
by all of the Stockholders. Each such deposit shall be accompanied by stock
powers duly executed in blank or such other instrument as may be reasonably
requested by the Trustee to enable the Trustee to transfer the Shares to the
Trustee's name, as trustee. Upon each such deposit, all certificates
representing the Shares so deposited shall be surrendered by the Trustee to the
Company or its transfer agent and canceled and new certificates representing the
Shares shall be issued to and in the name of the Trustee, as Trustee of the
Voting Trust. Except as hereinafter provided, such Share certificates shall at
all times be and remain in the possession, and under the control, of the Trustee
or his agent.
(b) In addition to any other legends required by the Stockholders
Agreement, each new certificate for Shares issued to the Trustee shall bear a
legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
ISSUED PURSUANT TO AND ARE SUBJECT TO THE TERMS OF A
CERTAIN VOTING TRUST AGREEMENT, DATED MARCH 17, 1997
AMONG THE ISSUER, THE TRUSTEE OF THE VOTING TRUST
AND THE BENEFICIAL OWNER OF THESE SECURITIES. THESE
SECURITIES MAY NOT BE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE VOTING TRUST
AGREEMENT, A COPY OF WHICH IS ON FILE AT THE
ISSUER'S REGISTERED OFFICE IN THE STATE OF NEVADA.
A like notation shall be made in the Company's stock transfer records with
respect to such Shares.
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(c) Upon receipt of the new certificate representing the Shares,
the Trustee shall deliver to the Stockholders one or more voting trust
certificates therefor, each substantially in the form of Exhibit A hereto (each,
a "Voting Trust Certificate"). Each Voting Trust Certificate shall specify the
number of Shares in respect of which it is issued, shall be dated the date of
its issuance and shall be signed manually by the Trustee.
(d) The Trustee shall retain and hold the certificates
representing the Shares only in accordance with, and subject to the terms and
conditions set forth in, this Agreement. The Trustee shall have no authority to,
and shall not, Transfer the Shares, except to the extent otherwise specifically
required by this Agreement. All Shares and all cash, securities or other
property distributed in respect of the Shares that is held by Trustee shall be
held in trust for the benefit of the Stockholders and no creditors of the
Trustee shall have any right to or claim against any of the assets of the Voting
Trust.
(e) The Stockholders will not communicate with the Voting Trustee
regarding the management or operation of the Company's and its Subsidiaries'
radio broadcast stations.
1.3 TRANSFER OR EXCHANGE OF VOTING TRUST CERTIFICATES.
(a) The Trustee will maintain an office or agency at the address
specified for the Trustee in Section 4.4 (or at such other address as the
Trustee may indicate to the Stockholders from time to time in accordance with
Section 4.4) at which Voting Trust Certificates may be presented or surrendered
for registration of transfer or for exchange (the "Registrar"). The Registrar
shall keep a register of the Voting Trust Certificates and of their transfer and
exchange. The Trustee may appoint any Person to act as the Registrar on its
behalf, but in the absence of an effective appointment, the Trustee shall act as
the Registrar hereunder.
(b) When Voting Trust Certificates are presented to the Registrar
with a request to register the transfer of such Voting Trust Certificates, or to
exchange them for Voting Trust Certificates of different denominations which in
the aggregate represent the Shares for which such Voting Trust Certificates are
being exchanged, in each case, accompanied by a duly executed instrument of
assignment or exchange substantially in the form attached as Exhibit B hereto,
then the Registrar shall register the transfer or make the exchange as
requested; provided that the Registrar shall require, as a condition to
registering a transfer of Voting Trust Certificates, that the transferee execute
and deliver to the Trustee its written agreement to be bound by the terms of
this Agreement as a Stockholder hereunder and to be bound by the terms of the
Stockholders Agreement as a Stockholder thereunder, substantially in the form of
Exhibit C hereto.
1.4 REGISTRATION OF HOLDERS. The Trustee may treat the registered
holder of a Voting Trust Certificate as the owner thereof for all purposes.
Every transferee of a Voting Trust Certificate shall be required to become a
party to this Agreement, with the same force and effect as if such transferee
had signed this Agreement, and each such transferee shall for all purposes be
considered a Stockholder hereunder.
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1.5 REPLACEMENT OF VOTING TRUST CERTIFICATE. Upon receipt of
evidence reasonably satisfactory to the Trustee (and an affidavit of the
registered holder will be satisfactory) of the ownership and the loss, theft,
destruction or mutilation of a Voting Trust Certificate, and in the case of any
such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Trustee (provided that if the registered holder is ABRY,
ABRY/CIP or a financial institution or other institutional investor, its own
agreement will be satisfactory), or, in the case of any such mutilation, upon
surrender of such certificate, the Trustee shall (at the registered holder's
expense) execute and deliver in lieu of such certificate a new Voting Trust
Certificate of like kind representing the number of Shares represented by such
lost, stolen, destroyed or mutilated certificate and dated the date of such
lost, stolen, destroyed or mutilated certificate.
ARTICLE II
THE TRUSTEE
2.1 VOTING OF SHARES. During the term of this Agreement and for so
long as the Trustee shall hold the Shares pursuant to this Agreement, the
Trustee shall possess and in his sole discretion shall be entitled to and have,
the duty to exercise, in person or by his nominees or proxies, all of the
Stockholders' voting rights and voting powers in respect of the Shares, and to
take part in any stockholders' meetings, including the right to vote the Shares
for the election of directors of the Company (subject to any limitations imposed
by law, the Company's certificate of incorporation or bylaws or this Agreement).
In discharging such duty, the Trustee shall, with respect to matters covered by
Section 2.1 of the Voting Agreement, vote all of the Shares in the manner
required by such Section 2.1; provided that any Person's right to direct the
Trustee's action pursuant to Section 2.1 of the Voting Agreement shall be
subject to the limitations on such right as are expressed in the Voting
Agreement. This Section 2.1 shall not be deemed to empower the Trustee to
exercise any other rights of the Stockholders with respect to ownership of the
Shares, including but not limited to (i) pursuant to Section 11 or Section 13.a.
of the Securities Purchase Agreement, (ii) pursuant to all provisions of the
Stockholders Agreement, (iii) pursuant to Sections 2, 3 and 12(c) of the
Registration Rights Agreement, or (iv) pursuant to Section 7.2 of the Voting
Agreement, and with respect to any of the matters set forth in clauses (i)
through (iv) above, the Company agrees to submit such matters solely to the
holders of the Voting Trust Certificates.
2.2 DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to Section 2.2(b) below, the Stockholders shall be
entitled to receive dividends or distributions of money, securities, or other
property, if any, collected or received by the Trustee with respect to the
Shares represented by the Voting Trust Certificates. Any such payments received
by the Trustee shall be held in trust for the benefit of the Stockholders and
shall be paid over to the Stockholders by Trustee promptly upon the Trustee's
receipt of such dividends or distributions. In lieu of receiving dividends or
distributions and paying them to the Stockholders, the Trustee may instruct the
Company in writing to pay the dividends or distributions (other than dividends
consisting of Capital Stock) directly to the Stockholders. In the event any such
instruction is given to the Company, all liability of the Trustee with regard to
the payment of such dividends or distributions shall cease, unless and until
such instruction is revoked.
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(b) Notwithstanding Section 2.2(a) above, in the event that the
Trustee receives any additional shares of Capital Stock through a dividend or
other distribution with respect to any Shares, the Trustee shall hold such
Capital Stock subject to this Agreement for the benefit of the Stockholders and
such Capital Stock shall become subject to all of the terms and conditions of
this Agreement to the same extent as if it were originally deposited as Shares
hereunder. The Trustee shall issue Voting Trust Certificates in respect of such
Capital Stock to the Stockholders as soon as practicable after the Trustee's
receipt of such Capital Stock.
2.3 EXPENSES; EXCULPATION; ETC. The Trustee, and each Person who is at
any time a Back-Up Trustee, shall be entitled to receive compensation for his
services as Trustee and availability as a Back-Up Trustee hereunder or agreement
to provide services hereunder in the amount of $25,000 per annum. The Trustee is
expressly authorized to incur and pay and be promptly reimbursed by the
Stockholders for all reasonable charges and other expenses which the Trustee
deems necessary and proper in the performance of his duties under this
Agreement. The Trustee need only perform such duties as are specifically set
forth in this Agreement and no covenants or obligations shall be implied in this
Agreement that are adverse to the Trustee. The Trustee shall not be liable for
his action or failure to act hereunder, unless such action or failure to act
constitutes gross negligence or willful misconduct on its part. The Trustee
shall not be required to give any bond or other security for the discharge of
its duties under this Agreement.
2.4 SUCCESSOR TRUSTEE. The Trustee may assign his rights and delegate
his obligations to a successor Trustee, who shall be a Back-Up Trustee or
another Person appointed in the same manner as an additional Back-Up Trustee
would be appointed hereunder, so long as such successor Trustee is not an
Affiliate of any Stockholder, is a U.S. citizen and otherwise is qualified to be
the Trustee under the Communications Act of 1934, as amended (the
"Communications Act"), and the rules and policies of Federal Communications
Commission (the "FCC") thereunder; provided that if the Trustee is unable to
perform as Trustee hereunder, the Stockholders and the Company hereby designate
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to serve as the successor Trustee, and if J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
is unable or unwilling to perform as Trustee hereunder, the Company and the
Stockholders hereby designate ▇▇▇▇▇▇ ▇▇▇▇ to serve as the successor Trustee.
Each individual named in the preceding proviso is referred to as a "Back-Up
Trustee"; if at any time any individual which is a Back-Up Trustee becomes
ineligible to serve as the Trustee or becomes the Trustee, then the Trustee (or,
if there is no Trustee or Back-Up Trustee, then the Company (by action approved
by not fewer than three-fourths (3/4) of the members of the Company's board of
directors) and Majority Beneficial Owners) shall appoint one or more additional
Back-Up Trustees so that, as nearly as practicable, at all times there are two
Back-Up Trustees. As a condition to any such appointment of any additional
Back-Up Trustee, the Company may require that such additional Back-Up Trustee
certify that he or she is an independent person having no familial or
extra-trust business relationship (within the meaning of the rules and policies
of the FCC under the Communications Act) with any Stockholder or any Affiliate
of any Stockholder. Any successor Trustee appointed as herein provided shall
indicate his or her acceptance of such appointment by executing a counterpart of
this Agreement and thereupon such successor shall be vested with all the rights,
powers, duties and immunities herein conferred upon the Trustee as though such
successor had been originally a party to this Agreement as Trustee. Upon
assignment of his rights and delegation of his duties pursuant to this Section
2.4 and such acceptance, the assigning Trustee's authority to vote or otherwise
exercise any rights with respect
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to the Shares shall immediately terminate, and the assigning Trustee shall
immediately surrender all certificates for Shares held by him to the Company
accompanied by stock powers duly executed in blank. The Company shall cancel
such certificates and shall issue new certificates representing the Shares to
and in the name of the successor Trustee, as Trustee of this Voting Trust.
ARTICLE III
TERM OF VOTING TRUST;
RELEASE OF SECURITIES
3.1 TERM OF VOTING TRUST; TRANSFER OF SHARES.
(a) The Voting Trust shall commence upon the execution of this
Agreement by the parties hereto and shall continue until terminated in
accordance with Section 3.1(b).
(b) This Agreement and/or the Voting Trust shall terminate upon
the written agreement of the Company (by action approved by not fewer than
three-fourths (3/4) of the members of the Company's board of directors) and
Majority Beneficial Owners; provided, that the Voting Trust shall terminate with
respect to any Shares upon any Transfer of such Shares to a Person which is not
an Affiliate of either Stockholder or upon a distribution of Shares by a
Stockholder to its partners. Upon any termination of the Voting Trust for any
reason (other than pursuant to the foregoing proviso), the Shares will revert to
the Stockholders which hold the Voting Trust Certificates which relate to the
Shares. Upon and as a condition to any such termination (other than pursuant to
the foregoing proviso), each Stockholder will execute and deliver to the Company
and the other Stockholders (as that term is defined in the Voting Agreement) a
counterpart of the Voting Agreement; until such a Stockholder has done so, the
Company will not record such reversion on its books or treat for any purpose
such Stockholder as the owner of the Shares which are to revert to such
Stockholder.
(c) Upon the termination of the Voting Trust by written agreement
pursuant to Section 3.1(b) above, and the surrender by the Stockholders to the
Trustee of the Voting Trust Certificates issued by the Trustee in respect of the
Shares, the Trustee shall surrender the certificates representing the Shares to
the Company properly endorsed for transfer to the Stockholders, shall take all
other actions appropriate to effectuate the transfer of the Shares to the
Stockholders and shall distribute all other property held in trust for the
Stockholders.
(d) Upon the termination of the Voting Trust with respect to any
Shares pursuant to the proviso to Section 3.1(b) above, and the surrender by the
Stockholders to the Trustee of the Voting Trust Certificates issued by the
Trustee in respect of such Shares, the Trustee shall surrender the Certificates
representing such Shares to the Company properly endorsed for transfer to
transferee in question and shall take all other actions appropriate to
effectuate the transfer of such Shares to such transferee. If less than all of
the Shares which are represented by a stock certificate are involved in the
Transfer in question, then the Company shall, or shall cause its transfer agent
to, issue and deliver to the Trustee a certificate for the Shares which were not
involved in such Transfer. If less than all of the Shares represented by a
Voting Trust Certificate are involved in the Transfer
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in question, then the Trustee shall issue and deliver to the surrendering holder
a Voting Trust Certificate representing the Shares which were not involved in
such Transfer.
(e) At any time when the Voting Agreement has not been
terminated, it shall be a condition to any Transfer of any Shares (other than in
a Public Sale or to a Successor Trustee in such Person's capacity as a Successor
Trustee) that the prospective transferee execute and deliver to the Company and
the other Stockholders (as that term is defined in the Voting Agreement) a
counterpart of the Voting Agreement. Any Transfer or attempted Transfer of any
Shares in violation of the preceding sentence will be void, and the Company will
not record such Transfer on its books or treat any purported transferee of such
Shares as the owner of such Shares for any purpose.
3.2 RELEASE OF SECURITIES FOR PUBLIC SALE. If at any time after
the Company has effected an initial public offering of its equity securities, a
Stockholder desires to effect a Public Sale of Shares which are held in the
Voting Trust, such Stockholder shall give notice to the Trustee of such sale
prior to the proposed date of sale, specifying the intended method of
distribution and the number of shares to be sold, and shall surrender to the
Trustee the Voting Trust Certificates issued by the Trustee in respect of the
Shares proposed to be sold. Upon receipt of such notice and the related Voting
Trust Certificates, the Trustee shall deliver the certificates representing the
Shares to be sold, endorsed in blank, to the Company or its transfer agent for
registration of transfer to the purchaser (or its intermediary) in such Public
Sale. If less than all the Shares represented by a particular certificate are
being sold in such Public Sale, the Company shall, or shall cause its transfer
agent to, issue and deliver to the Trustee a certificate for the Shares not
being sold. If less than all of the Shares represented by a Voting Trust
Certificate are to be sold in such Public Sale, then the Trustee will issue and
deliver to the surrendering holder a Voting Trust Certificate representing the
Shares which are not involved in such Public Sale.
ARTICLE IV
MISCELLANEOUS
4.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"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, or with respect to an individual, such
individual's spouse and descendants (whether natural or adopted) and
any trust for the benefit of such individual and/or his or her spouse
and/or descendants.
"AGREEMENT" has the meaning given such term in the preface.
"CAPITAL STOCK" means the Company's Series C Convertible Preferred
Stock, par value $.001 per share (the "Series C Preferred"), the
Company's Series D Convertible Preferred Stock, par value $.001 per
share (the "Series D Preferred"), the Company's Class A Common Stock,
par value $.001 per share (the "Class A Common"), and the Company's
Class B Common Stock, par value $.001 per share (the "Class B Common").
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"COMPANY" has the meaning given such term in the preface.
"FACILITY A NOTE" means the Convertible Promissory Notes issued by
the Company to ABRY and ABRY/CIP on or after June 28, 1996 pursuant to
the terms and conditions of the Securities Purchase Agreement.
"MAJORITY BENEFICIAL OWNERS" means holders of Voting Trust
Certificates which represent a majority of the Shares held in the
Voting Trust at the time in question (assuming the conversion in full
into Common Stock of all Shares which are Series C Preferred or Series
D Preferred immediately prior to such time).
"PERSON" means an individual, a partnership, a joint venture,
a corporation, an association, a joint stock company, a limited
liability company, a trust, an unincorporated organization or a
government or any department or agency or political subdivision
thereof.
"PUBLIC SALE" means any sale of Shares (i) to the public
pursuant to an offering registered under the Securities Act or (ii) to
the public pursuant to the provisions of Rule 144 under the Securities
Act of 1933, as amended.
"REGISTRAR" has the meaning given such term in Section 1.3(a).
"REGISTRATION RIGHTS AGREEMENT" has the meaning given such
term in the preface.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SECURITIES PURCHASE AGREEMENT" has the meaning given such
term in the preface.
"SHARES" means and includes all shares of Capital Stock deposited
by the Stockholders with the Trustee pursuant to this Agreement and any
additional shares of Capital Stock of the Company issued or distributed
by the Company to the Trustee by way of a dividend or distribution on
other Shares or issued by the Company to the Stockholders upon the
conversion of any Series C Preferred, Series D Preferred, Class B
Common or Facility A Note.
"STOCKHOLDERS" has the meaning given such term in the
preface.
"STOCKHOLDERS AGREEMENT" has the meaning given such term in
the preface.
"TRANSFER" means to sell, transfer, assign, pledge,
hypothecate or otherwise dispose of any interest in any securities.
"TRUSTEE" has the meaning given such term in the preface.
"VOTING AGREEMENT" has the meaning given such term in the preface.
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"VOTING TRUST" has the meaning given such term in Section 1.1.
"VOTING TRUST CERTIFICATE" has the meaning given such term in
Section 1.2(c).
4.2 MERGER; AMENDMENT. This Agreement, the March 1997 Letter
Agreement, the Voting Agreement, the Stockholders Agreement, the Securities
Purchase Agreement and the Registration Rights Agreement constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersede all prior oral or written agreements, commitments or
understandings with respect to the matters provided for herein. This Agreement
shall not be amended, altered or modified except by a written instrument that
expressly refers to this Agreement, is signed by each of the Company, the
Trustee and the Stockholders and is filed with the Company's registered office
within the State of Nevada.
4.3 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
permitted successors and permitted assigns. The rights and duties of any party
to this Agreement shall not be assigned or delegated, except in connection with
the resignation of any Trustee and the appointment of a successor Trustee in
accordance with Section 2.4 hereof or the Transfer of any Voting Trust
Certificate effected in accordance with the terms hereof.
4.4 NOTICES. All notices and other communications given under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered in person or mailed by first class, registered or certified
mail, postage prepaid or telegram and addressed to the parties hereto as
follows:
(i) If to the Company:
Citadel Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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with a copy, which shall not constitute notice, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(ii) If to Trustee:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Piliero, Goldstein, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(iii) If to the Stockholders:
c/o Paradigm Consulting Ltd.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy, which shall not constitute notice, to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
and to any subsequent holder of Voting Trust Certificates at the address as
indicated in the Registrar's records, or in each case to such other address as
any of them by written notice to the sending party may from time to time
designate, with copies also sent to such attorney as the parties hereto may from
time to time designate. Each notice or other communication which shall be
personally delivered, mailed or transmitted in the manner described above shall
be deemed sufficiently received for all purposes at such time as it is delivered
to the addressee (with any return receipt on delivery receipt being deemed
conclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
4.5 SEVERABILITY. If any provision of this Agreement or any
other agreement, document or writing given pursuant to or in connection with
this Agreement shall be found by a court of competent jurisdiction to be
invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity only, without in any way affecting
the remainder of such provision or the remaining provisions of this Agreement.
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4.6 SPECIFIC ENFORCEMENT. The Company, the Trustee and the
Stockholders shall be entitled to enforce their rights under this Agreement
specifically, to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights existing in their favor. The
parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that the Company,
the Trustee or any Stockholder may in its or his sole discretion apply to any
court of law or equity of competent jurisdiction for specific performance or
injunctive relief (without posting a bond or other security) in order to
enforce or prevent any violation of the provisions of this Agreement.
4.7 HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience of reference only and do not form a part or affect the
meaning hereof.
4.8 GOVERNING LAW. This Agreement, the rights and obligations
of the parties hereto, and any claims and disputes relating thereto, shall be
governed by and construed in accordance with the local laws (and not the laws
of conflicts) of the State of Nevada.
4.9 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
which shall be deemed to be one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
- 11 -
12
SIGNATURE PAGE TO VOTING TRUST AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, as the initial Trustee
/s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as an initial
Back-Up Trustee
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇, as an initial Back-Up Trustee
CITADEL COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
STOCKHOLDERS:
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: President
13
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: President
14
Exhibit A to
Voting Trust Agreement
THIS VOTING TRUST CERTIFICATE IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS
OF A CERTAIN VOTING TRUST AGREEMENT, DATED MARCH __, 1997 BY AND AMONG CITADEL
COMMUNICATIONS CORPORATION (THE "COMPANY"), THE TRUSTEE OF THE VOTING TRUST AND
THE BENEFICIAR(Y)(IES) OF THE VOTING TRUST. THE BENEFICIAL INTEREST IN SHARES
OF THE CAPITAL STOCK OF THE COMPANY REPRESENTED BY THIS VOTING TRUST
CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE
VOTING TRUST AGREEMENT, A COPY OF WHICH IS ON FILE AT THE ISSUER'S REGISTERED
OFFICE IN THE STATE OF NEVADA.
THE SECURITIES REPRESENTED BY THIS VOTING TRUST CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE
SECURITIES LAW AND THE SECURITIES REPRESENTED HEREBY CANNOT BE TRANSFERRED
UNLESS IT IS REGISTERED OR QUALIFIED UNDER SUCH FEDERAL AND ANY APPLICABLE
STATE SECURITIES LAW OR UNLESS AN EXEMPTION FROM REGISTRATION OR QUALIFICATION
IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE CONSTITUTE ABRY STOCK UNDER A
CERTAIN SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED AS OF JUNE 28,
1996, AS AMENDED, AND CERTAIN OF THE COMPANY'S STOCKHOLDERS AND, AS SUCH, ARE
SUBJECT TO CERTAIN VOTING PROVISIONS, PURCHASE RIGHTS AND RESTRICTIONS ON
TRANSFER SET FORTH IN THE STOCKHOLDERS AGREEMENT. A COPY OF SUCH STOCKHOLDERS
AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF
UPON WRITTEN REQUEST.
Certificate No. VTC - Date of Issuance:
------ ------
Number of Shares Beneficially
Represented Hereby: shares
------
of stock, par value
------
$ per share
------
VOTING TRUST CERTIFICATE
This Voting Trust Certificate (this "Certificate") certifies
that the undersigned Trustee has received certificate(s) representing
____________ shares of ________ stock, par value $_____ per share (the "Shares")
of Citadel Communications Corporation, a Nevada corporation (the "Company"), on
behalf of (the "Holder"), duly registered in the name of the undersigned
Trustee, on the following terms and conditions:
RIGHTS OF HOLDERS
The Holder agrees to, accepts and ratifies all of the terms,
conditions and covenants of that certain Voting Trust Agreement dated March __,
1997 (the "Agreement") which is hereby incorporated herein by reference.
Capitalized terms used but not otherwise defined in this Certificate shall have
the meanings given such terms in the Agreement. The Holder shall possess and be
entitled to rights of ownership of the Shares only as provided in the
Agreement. The Holder of this Certificate shall transfer or replace this
Certificate only as provided in the Agreement.
A-1
15
VOTING AND OTHER RIGHTS
The Trustee during the term of the Agreement shall have sole
voting rights and certain other rights with respect to the Shares as specified
in the Agreement (subject to the limitations imposed by the Company's
certificate of incorporation, bylaws or any Agreement to which the Shares may
be subject).
DIVIDENDS AND DISTRIBUTIONS
The Holder of this Certificate shall be entitled to receive
all dividends or other distributions of cash, securities or other property by
the Company received by the undersigned Trustee in respect of the Shares,
except that in the event of dividends or distributions of shares of Capital
Stock the Trustee shall receive and hold any such dividends or distributions
pursuant to the terms of the Agreement and shall issue to the Holder hereof
additional Certificates representing such additional Shares. In lieu of the
Trustee receiving dividends and distributions and paying them to the Holder of
this Certificate, the Trustee may instruct the Company to pay the dividends or
distributions directly to the Holder, as provided in the Agreement.
TERMINATION
The Voting Trust shall terminate as provided in the Agreement.
SUBJECT TO VOTING TRUST AGREEMENT
This Certificate is governed in all respects by the
Agreement. In the event of any inconsistency between the terms and conditions
of this Certificate and the Agreement, the Agreement shall control.
A-2
16
IN WITNESS WHEREOF, this Certificate is executed and issued
to the Holder by the undersigned Trustee as of the date first written above.
-------------------------
------------------------- , as Trustee
A-3
17
Exhibit B to
Voting Trust Agreement
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers its right, title and interest in and to the attached Voting Trust
Certificate, certificate number __, the beneficial interest in the shares of
capital stock of Citadel Communications Corporation, a Nevada corporation (the
"Company") represented thereby and all related rights under the Voting Trust
Agreement dated as of March __, 1997 (the "Voting Trust Agreement"), among
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ or his successor-in-interest, as trustee (the "Trustee") and
the other parties thereto, to ______________________ and authorizes
_______________________ to surrender the attached Voting Trust Certificate to
the Trustee or its designee for registration of transfer.
Date:
------------------------- ----------------------------------
[SIGNATURE OF STOCKHOLDER]
B-1
18
Exhibit C to
Voting Trust Agreement
JOINDER
This Joinder is made as of the date written below by the
undersigned (the "Joining Party") in favor of and for the benefit of
________________, or its successor-in-interest (the "Voting Trustee") and the
other Persons party to the Voting Trust Agreement, dated as of March __, 1997
(the "Voting Trust Agreement"), among the Voting Trustee and Citadel
Communications Corporation, a Nevada corporation (the "Company"), and the other
Persons party to the Second Amended and Restated Stockholders Agreement, dated
as of June 28, 1996, as amended (the "Stockholders Agreement") among the Company
and such other Persons. Capitalized terms used but not defined herein shall have
the meanings given such terms in the Voting Trust Agreement.
Accordingly, the Joining Party hereby agrees as follows:
1. The Joining Party hereby acknowledges, agrees and confirms
that, by its execution of this Joinder, the Joining Party will be deemed to be a
party to the Voting Trust Agreement and shall have all of the obligations of a
party thereunder as if it had executed the Voting Trust Agreement. The Joining
Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of
the terms, provisions and conditions contained in the Voting Trust Agreement.
2. The Joining Party hereby acknowledges, agrees and confirms
that, by its execution of this Joinder, the Joining Party will be deemed to be a
party to the Stockholders Agreement and shall have all of the obligations of a
Stockholder and a holder of ABRY Stock thereunder as if it had executed the
Stockholders Agreement. The Joining Party hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Stockholders Agreement.
C-1
19
IN WITNESS WHEREOF, the undersigned has executed this Joinder as of
the date written below.
Date:
------------------------- ----------------------------------
By:
-------------------------------
Name:
Title:
Accepted and agreed as of the date
first above written:
----------------------------------
--------------------- , as Trustee
CITADEL COMMUNICATIONS CORPORATION
By:
-------------------------------
Name:
Title:
C-2
