-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EpR+B7zZ11ZiRttxWtwilJOhA/YCpTjSdssmcSAQbwmhY6w9iSXPxw1Z0vMGvaL9 bPgnXgxLOEDrxcZ56e2Baw== 0001144204-04-014654.txt : 20040917 0001144204-04-014654.hdr.sgml : 20040917 20040917141016 ACCESSION NUMBER: 0001144204-04-014654 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20040915 ITEM INFORMATION: Termination of a Material Definitive Agreement ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20040917 DATE AS OF CHANGE: 20040917 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORION ACQUISITION CORP II CENTRAL INDEX KEY: 0001011835 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 133863260 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-20837 FILM NUMBER: 041035545 BUSINESS ADDRESS: STREET 1: 401 WILSHIRE BOULEVARD STREET 2: SUITE 1020 CITY: SANTA MONICA STATE: CA ZIP: 90401 BUSINESS PHONE: 310-526-5000 MAIL ADDRESS: STREET 1: 401 WILSHIRE BOULEVARD STREET 2: SUITE 1020 CITY: SANTA MONICA STATE: CA ZIP: 90401 8-K 1 v06832_8-k.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 -------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) September 15, 2004 ------------------------------- ORION ACQUISITON CORP. II (Exact Name of Registrant as Specified in Charter) Delaware 0-20837 13-386326 - ------------------------------- ------------------------ ------------------- (State or Other Jurisdiction of (Commission File Number) (IRS Employer Incorporation) Identification No.) 401 Wilshire Boulevard, Suite 1020, Santa Monica, California 90401 - ------------------------------------------------------------ ---------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code (310) 526-5000 ---------------------------- N/A --- (Former Name or Former Address, if Changed Since Last Report) Item 1.02 Termination of a Material Definitive Agreement On June 23, 2004, Orion Acquisition Corp. II, a Delaware corporation ("Orion"), entered into an Agreement and Plan of Merger ("Merger Agreement") with Citadel Media, Inc., a Washington corporation ("Citadel"), for a proposed merger of Citadel with and into Orion, with Orion as the surviving corporation under Delaware law. The negotiations for the proposed merger had commenced in late 2003. Because of the passage of time and the change in financial and business circumstances of Citadel that occurred during 2004, the parties to the Merger Agreement realize that a number of substantial terms of the merger were no longer appropriate. Therefore, the parties decided to terminate the Merger Agreement without penalty or expense to the other so that the possible merger and potential merger terms could be reconsidered outside the confines of the prior Merger Agreement. There is no assurance that there will be a merger of Orion with Citadel in the future. As of September 15, 2004, Orion and Citadel entered into a Second Modification Agreement to terminate the Merger Agreement. Under its terms, the Merger Agreement is entirely terminated, and the parties have given each other a general release of all possible past, present and future claims that relate to the Merger Agreement. In addition, the parties have agreed to consult with each other on any public disclosure concerning the termination. As a corollary to the termination, by separate agreement dated as of September 15, 2004, Orion extended the maturity date of the notes representing $1,000,000 in aggregate principal amount previously lent to Citadel. The new maturity date is November 1, 2004. The loans were made December 9, 2003, March 7, 2004 and July 2, 2004, and bear interest at the rate of 10% per annum. The loans are secured by all the assets of Citadel. In June and July 2004, Orion filed with the Securities and Exchange Commission and distributed to its stockholders an information statement on Schedule 14f-1 indicating a change in directors, management and control as a result of the proposed merger. Because the Merger Agreement has been terminated, currently there will be no such changes. Therefore, Christopher A. Marlett, Anthony DiGiandomenico and Dyana Marlett will continue as the directors and officers of Orion in the positions that they have held to date. Item 3.03. Material Modification to Rights of Security Holders The Class B Warrants continue to be outstanding. Because there is no merger of Orion with a target company, the commencement of the exercise period and the termination date of the Class B Warrants cannot yet determined. Although the Merger Agreement has been terminated, the revision to the settlement agreement with American High Growth Retirement Trust remains operative. Therefore, as described in the Form 10-QSB for the fiscal quarter ended June 30, 2004, the Class B Warrants are not entitled to any rights to additional common stock upon any consummation of a future merger or combination. 1 Item 9.01 Financial Statements and Exhibits (c) Exhibits Exhibit Number Description -------------- ----------- 2.1 Second Modification Agreement to terminate Agreement and Plan of Merger between Orion Acquisition Corp. II and Citadel Media, Inc. 10.1 Note Extension Agreement for Citadel Notes - ------------------------------ 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: September 17, 2004 ORION ACQUISITION CORP. II (Registrant) /s/ Dyana Marlett ----------------- Dyana Marlett Secretary 3 EXHIBIT INDEX Exhibit Number Description - -------------- ----------- 2.1 Second Modification Agreement to Agreement and Plan of Merger between Orion Acquisition Corp. II and Citadel Media, Inc. 10.1 Note Extension Agreement for Citadel Notes - ------------------------------ 4 EX-2.1 2 v06832_ex2-1.txt SECOND MODIFICATION AGREEMENT This SECOND MODIFICATION AGREEMENT ("Agreement") dated as of September 15, 2004, by and between Citadel Media, Inc., a Washington corporation ("Citadel"), and Orion Acquisition Corp. II, a Delaware corporation ("Orion"). RECITALS Whereas, the parties entered into a Agreement and Plan of Merger, dated June 23, 2004, as amended on July 2, 2004 ("Merger Agreement"), which provided for a closing of the merger of Citadel with and into Orion ("Merger") on or before, but no later than July 31, 2004 ("Closing Date"), and Whereas, the Merger and Closing Date did not occur, and Whereas, the parties hereto wish to terminate the Merger Agreement without penalty or expense to either, understanding that the terms thereof have to be reconsidered because of the passage of time and the change in circumstances that have occurred making the current form no longer entirely applicable to the previous terms of the business combination; and Whereas, the parties may continue discussions for a possible business combination but wish to do so outside the confines of the prior Merger documentation. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Termination of Merger Agreement. The parties hereto agree as of the date of this Agreement to terminate the Merger Agreement. 2. Citadel Release. Citadel for itself and its officers, directors and shareholders shall forever and irrevocably waive, release, discharge, and acquit Orion, MDB Capital Group, LLC and its principals (collectively "MDB"), and their present and former owners, members, officers, directors, managers, and shareholders, of and from any and all claims, causes of action, obligations, and liabilities of any kind whatsoever, at law or in equity, known or unknown, which Citadel for itself and for its officers, directors and shareholders that they have, may have had, claims to have had, or may have in the future, which are or may be based upon any facts, acts, conduct, representations, omissions, contracts, claims, events, causes, matters, or other things occurring at any time related to, arising from, or occurring as a result of the Merger Agreement. 3. Orion Release. Orion and MDB (which Orion shall cause to be bound by this Agreement) and for each of its officers, directors, shareholders, members and managers shall forever and irrevocably waive, release, discharge, and acquit Citadel and its present and former owners, members, officers, directors, and shareholders, of and from any and all claims, causes of action, obligations, and liabilities of any kind whatsoever, at law or in equity, known or unknown, which Orion, MDB or its officers, directors, shareholders, members and managers have, may have had, claims to have had, or may have in the future, which are or may be based upon any facts, acts, conduct, representations, omissions, contracts, claims, events, causes, matters, or other things occurring at any time related to, arising from, or occurring as result of the Merger Agreement, (other than those claims relating to Citadel's repayment of the Orion Notes dated as of December 9, 2003, March 7, 2004 and July 2, 2004, aggregating $1,000,000 in principal amount [collectively the "Orion Notes"], which are expressly reserved and excluded from this release of claims). 1 The release under this Section 3 shall not apply to the Orion Notes, which Citadel agrees are in full and effect. 4. Public Notice. The parties to this Agreement shall jointly develop a press release and public disclosure that shall (i) announce the termination of the Merger Agreement, (ii) not assign fault for the termination of the Merger Agreement, and (iii) include such other language to which the parties shall reasonably agree. Notwithstanding the foregoing, Orion may make any such disclosure and file such documents as may be required by law or regulation, on the advice of counsel, without consultation with or agreement by Citadel. [SIGNATURE PAGE FOLLOWS.] 2 [SIGNATURE PAGE OF SECOND MODIFICATION AGREEMENT] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered on the date first above written. ORION ACQUISITION CORP. II /S/ Christopher Marlett Name: Christopher A. Marlett Title: Chief Executive Officer CITADEL MEDIA, INC. /S/ Patrick Crumb Name: Patrick W. Crumb. Title: President MDB CAPITAL GROUP LLC /S/ Christopher Marlett Name: Christopher A. Marlett Title: Principal 3 EX-10.1 3 v06832_ex10-1.txt NOTE EXTENSION AGREEMENT THIS NOTE EXTENSION AGREEMENT ("Agreement") dated as of September 15, 2004, by and between Citadel Media, Inc., a Washington corporation ("Citadel"), and Orion Acquisition Corp. II, a Delaware corporation ("Orion") Recital Whereas, Orion has loaned to Citadel, $500,000 in principal amount pursuant to a promissory note dated as of December 9, 2003 ("December Orion Note"), $250,000 in principal amount pursuant to a promissory note dated as of March 7, 2004 ("March Orion Note"), and $250,000 in principal amount pursuant to a promissory note dated as of July 2, 2004 ("July Orion Note"); Whereas, the December Orion Note, the March Orion Note and the July Orion Note each currently provide for a Maturity Date of September 15, 2004; and Whereas, Orion and Citadel intend to extend the Maturity Date of each of the December Orion Note, the March Orion Note and the July Orion Note to November 1, 2004. AGREEMENT NOW, THEREFORE, in consideration of the covenant and agreement herein contained, the parties hereto herby agree as follows: 1. Extended Maturity Date. The Maturity Date of each of the December Orion Note, the March Orion Note and the July Orion Note is hereby extended to November 1, 2004. 2. No Other Changes. All other terms of the December Orion Note, the March Orion Note and the July Orion Note, including the exhibits and agreements referenced therein or included therewith, shall remain in full force and effect and are hereby confirmed. All capitalized terms not defined herein, shall have the meaning set forth in the Orion Notes. ORION ACQUISITION CORP. II _____/S/ Christopher Marlett_______________ Name: Christopher A. Marlett Title: President CITADEL MEDIA, INC. _____/S/ Patrick Crumb_____________________ Name: Patrick W. Crumb Title: President -----END PRIVACY-ENHANCED MESSAGE-----