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Exhibit 9
AMENDED AND RESTATED
VOTING TRUST AGREEMENT
This AMENDED AND RESTATED VOTING TRUST AGREEMENT is made as of October 15,
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"), Harlan Levy ("Levy"), as the Trustee
hereunder (in such capacity, and together with his successors-in-interest in
such capacity, the "Trustee"), and, in the limited capacity described below,
Christopher Hall ("Hall") and J. Walter Corcoran ("Corcoran"). ABRY and
ABRY/CIP are collectively referred to herein as the "Stockholders". Certain
capitalized terms used herein are defined in Section 4.1.
WHEREAS, on March 17, 1997, the parties to this Agreement entered into a
Voting Trust Agreement (the "Prior Agreement"), pursuant to which (i) there was
created a certain voting trust (the "Existing Voting Trust"), (ii) the
Stockholders contributed to the Existing Voting Trust, and agreed in the future
to contribute to the Existing Voting Trust, certain securities of the Company,
(iii) Hall was appointed and agreed to serve as the Trustee of the Existing
Voting Trust, and (iii) Levy and Corcoran were appointed and agreed to serve as
Back-Up Trustees of the Existing Voting Trust;
WHEREAS, (i) Hall and the Stockholders have agreed that Hall will resign
as the Trustee of the Existing Voting Trust, (ii) Levy and the Stockholders
have agreed that Levy will succeed Hall as the Trustee of the Existing Voting
Trust, and (iii) Corcoran and the Stockholders have agreed that Corcoran will
resign as a Back-Up Trustee with respect to the Existing Voting Trust, in each
case effective as of the execution and delivery of this Agreement; and
WHEREAS, the Company, the Stockholders and Levy have determined that it is
appropriate to amend certain terms and conditions of the Prior Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and for the mutual agreements
contained herein: (1) as applicable, the Stockholders (who constitute the
Majority Beneficial Owners), the Company, Hall, Levy and Corcoran agree that,
effective upon the execution and delivery of this Agreement, (A) Hall shall
cease to be the Trustee of the Existing Voting Trust, (B) notwithstanding
Section 2.4 of the Prior Agreement, Levy shall become, and thereafter be, the
Trustee of the Existing Voting Trust, (C) Corcoran shall cease to be a Back-Up
Trustee with respect to the Existing Voting Trust, and (D) Hall and Corcoran
shall cease to be parties to the Prior Agreement and will not be parties to
such Agreement as it is amended and restated as
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provided in this Agreement, and (2) the Prior Agreement is hereby amended and
restated in its entirety as follows:
ARTICLE I
VOTING TRUST
1.1 CONTINUATION OF VOTING TRUST. Subject to the terms and conditions of
this Agreement, the Existing Voting Trust, which was created and established in
accordance with Section 78.365 of the Nevada Revised Statutes, is hereby
continued (the Existing Voting Trust, as so continued, being the "Voting
Trust"). The Trustee accepts the trust created by this Agreement and agrees to
his appointment as Trustee (with all attendant rights and duties hereunder).
Upon the 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, the Trustee 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 the Prior Agreement by the parties
thereto, each of the Stockholders deposited 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 to the Voting Trust and this Agreement 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
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ARE SUBJECT TO THE TERMS OF A CERTAIN AMENDED AND RESTATED
VOTING TRUST AGREEMENT, DATED OCTOBER 15, 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 AMENDED AND RESTATED 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.
(c) Upon receipt of the new certificate representing the Shares heretofore
contributed to the Voting Trust the Trustee delivered, and upon receipt of the
new certificate representing any Shares hereafter contributed the Trustee shall
deliver, to the contributing Stockholder 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) It is agreed that the subject matter of communications between a
Stockholder (on the one hand) and the Voting Trustee or any member of the board
of directors of the Company designated by the Voting Trustee (on the other
hand) will be limited to matters relating to the following:
(i) the issuance or sale of capital stock by the Company (which, for
purposes of this Section 1.2(e) shall include the Company's subsidiaries);
(ii) the Company's compliance with its obligations relating to the
Put (as that term is defined in the Stockholders Agreement) and the rights
of the Stockholders under the Stockholders Agreement with respect thereto;
(iii) any proposed sale or change of control of the Company,
including any proposed sale or other disposition of greater than 40% of
the Company's assets or operations in a single transaction or a series of
related transactions;
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(iv) the incurrence, repayment, refinancing or restructuring of
indebtedness of the Company (other than any working capital facility used
solely by a single radio station or radio stations located in a single
geographic market);
(v) the resignation, removal or replacement of the Voting Trustee,
any Back-Up Trustee or any such member of the Company's board of directors;
(vi) the disposition or registration for sale of Capital Stock held
by the Voting Trust; and
(vii) other matters (other than acquisitions of radio stations or
acquisitions of control of radio stations by the Company) arising outside
the ordinary course of the Company's business and operations;
provided that, in any event, no such communication shall concern matters
relating to the management or operation of any radio station.
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 the Stockholders
Agreement, (ii) pursuant to Sections 2, 3 and 12(c) of the Registration Rights
Agreement, or (iii) pursuant to Section 7.2 of the Voting Agreement, and with
respect to any of the matters set forth in clauses (i) through (iii) 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 shall be entitled to receive
from the Stockholders compensation for his services as Trustee hereunder in the
amount of $7,500 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.
(a) The Trustee may assign his rights and delegate his obligations to a
successor Trustee, who shall be a Back-Up Trustee, if there is then a Back-Up
Trustee, or another Person appointed in the same manner as a Back-Up Trustee
would be appointed hereunder, so long as such successor Trustee (1) is not an
Affiliate of any Stockholder, (2) is a U.S. citizen and (3) 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 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.
(b) At any time and from time to time, Majority Beneficial Owners may
designate one or more Persons to serve as the successor Trustee, and each
individual so designated 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 Majority Beneficial Owners may appoint
one or more additional BackUp Trustees. As a condition to any such appointment
of any Back-Up Trustee, such Back-Up Trustee will certify to the Company 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.
(c) Any successor Trustee appointed as herein provided shall indicate his
or her acceptance of such appointment and certify to the Company his or her
compliance with the standards set forth in Section 2.4(a) by executing a
counterpart of this Agreement and thereupon such successor shall be vested with
all the rights, powers,
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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 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 commenced upon the execution and delivery of the
Prior Agreement 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 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
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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 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.
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"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").
"COMPANY" has the meaning given such term in the preface.
"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" means the Third Amended and
Restated Registration Rights Agreement, dated as of June 28, 1996, as
amended through and in effect on the date hereof and as in effect
from time to time.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"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.
"STOCKHOLDERS" has the meaning given such term in the preface.
"STOCKHOLDERS AGREEMENT" means the Second Amended and Restated
Stockholders Agreement, dated as of June 28, 1996, as amended through
and in effect on the date hereof and as in effect from time to time.
"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.
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"VOTING AGREEMENT" means the Fourth Amended and Restated Voting
Agreement dated as of the date hereof, as in effect from time to
time.
"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 Voting Agreement, the letter
agreement dated March 17, 1997 among the Company, the Stockholders and certain
other Persons regarding the formation of the Voting Trust, the Stockholders
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
140 South Ash Avenue
Tempe, Arizona 85281
Attention: Ms. Donna Hefner
and
Lawrence R. Wilson
1015 Eastman Drive
Bigfork, Montana 59911
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with a copy, which shall not constitute notice, to:
Eckert Seamans Cherin & Mellott, LLC
600 Grant Street
42nd Floor
Pittsburgh, PA 15219-2788
Attention: Bryan D. Rosenberger, Esq.
(ii) If to Trustee:
Harlan Levy
444 East 86th Street
New York, New York 10028
(iii) If to the Stockholders:
c/o Paradigm Consulting Ltd.
22 Church Street, 2nd Floor
Hamilton HM11
Bermuda
Attention: Mr. Andrew Banks
with a copy, which shall not constitute notice, to:
Kirkland & Ellis
153 East 53rd Street
New York, New York 10022
Attention: John L. Kuehn, 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.
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
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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]
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[SIGNATURE PAGE TO AMENDED AND RESTATED
VOTING TRUST AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Voting Trust Agreement as of the date first above written.
/s/ CHRISTOPHER HALL
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Christopher Hall, as the resigning Trustee
/s/ HARLAN LEVY
--------------------------------------------
Harlan Levy, as the successor Trustee
/s/ J. WALTER CORCORAN
--------------------------------------------
J. Walter Corcoran, as the
resigning Back-Up Trustee
CITADEL COMMUNICATIONS
CORPORATION
By: /s/ DONNA L. HEFFNER
--------------------------------------------
Name: Donna L. Heffner
Title: Vice President
ABRY BROADCAST PARTNERS II, L.P.
By: ABRY CAPITAL, L.P.
Its General Partner
By: ABRY HOLDINGS, INC.
Its General Partner
By: /s/ ANDREW BANKS
----------------------------------------
Andrew Banks, 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/ ANDREW BANKS
--------------------------------------------
Andrew Banks, Attorney-in-Fact
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