UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
Great American Communications Company
(Name of Issuer)
Class A Common Stock
(Title of Class of Securities)
389912 10 6
(CUSIP Number)
John F. Hartigan, Esq. Morgan, Lewis & Bockius
801 South Grand Avenue, Los Angeles, CA 90017
(213) 612-2500
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 28, 1993
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement
/X/. (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of
more than five percent of the class of securities described in
Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).<PAGE>
SCHEDULE 13D
CUSIP No. 389912 10 6
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lion Advisors, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS*
OO
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or (e) / /
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 1,163,524 shares of Class A Common Stock
SHARES (issuable upon conversion of Class B Common
BENEFICIALLY Stock)
OWNED BY _________________________________________________
EACH REPORTING 8 SHARED VOTING POWER
PERSON _________________________________________________
WITH 9 SOLE DISPOSITIVE POWER
1,163,524 shares of Class A Common Stock (issuable
upon conversion of Class B Common Stock)
_________________________________________________
10 SHARED DISPOSITIVE POWER
_________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,163,524 shares of Class A Common Stock (issuable upon
conversion of Class B Common Stock)
_________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* /X/
_________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.1%
_________________________________________________________________
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!<PAGE>
STATEMENT PURSUANT TO RULE 13d-1
OF THE
GENERAL RULES AND REGULATIONS
UNDER THE
SECURITIES EXCHANGE ACT OR 1934, AS AMENDED
_________________________________________________________________
_________________________________________________________________
Item 1. Security and Issuer.
This Statement on Schedule 13D relates to Class A
Common Stock, par value $.01 per share (together with the
Company's Class B Common Stock (described in Item 3 below, the
"Common Stock"), of Great American Communications Company, a
Florida corporation (the "Company" or "GACC"). The principal
executive offices of GACC are located at One East Fourth Street,
Cincinnati, Ohio 45202.
Item 2. Identity and Background.
This Statement is filed by Lion Advisors, L.P., a
Delaware limited partnership ("Lion Advisors"), which is referred
to herein as the "Reporting Person."
Lion Advisors, a limited partnership organized under
the laws of the State of Delaware, is principally engaged in the
business of serving as advisor to and representative for its
clients, including Artemis America L.L.C. ("Artemis"). The
address of Lion Advisors' principal business and its principal
office is 1301 Avenue of the Americas, New York, New York 10019.
Pursuant to an investment management agreement by and between
Artemis and Lion Advisors (the "Investment Agreement"), Artemis
has appointed Lion Advisors as its exclusive investment manager
with respect to an investment account, and Lion Advisors has the
sole power to vote and dispose of any securities held in such
account.
The general partner of Lion Advisors is Lion Capital
Management, Inc. ("Capital Management"), a Delaware corporation,
which is principally engaged in the business of serving as
general partner of Lion Advisors. The address of the principal
business and principal office of Capital Management is c/o Lion
Advisors, L.P., 1301 Avenue of the Americas, New York, New York
10019.
Attached as Appendix A to Item 2 is information
concerning the principals, executive officers, directors and
principal shareholders of the Reporting Person and other entities
as to which such information is required to be disclosed in
response to Item 2 and General Instruction C to Schedule 13D.
Neither the Reporting Person, Capital Management nor
any of the persons or entities referred to in Appendix A to Item
2 has, during the last five years, been convicted in a criminal
proceeding (excluding traffic violations and similar
misdemeanors) or been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree, or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, Federal or state securities laws
or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
In connection with the consummation on December 28,
1993 of the comprehensive restructuring under a joint prepackaged
plan of reorganization (the "Reorganization") described in the
Disclosure Statement and Proxy Prospectus, dated September 27,
1993, as amended and supplemented, of the Company and two of its
holding company subsidiaries (the "Disclosure Statement"), the
Reporting Person, on behalf of its client, Artemis, exchanged
approximately $41,092,000 in aggregate principal amount of 9 1/2%
Senior Secured Notes due 2000 issued by GACC Holding Company, a
Delaware corporation and subsidiary of the Company, and acquired
beneficial ownership of 1,163,524 shares of Class B Common Stock
of the Company, and $19,780,000 in aggregate principal amount of
the Company's 14% Senior Extendable PIK Notes Due 2001 (the "New
14% Notes").
Shares of Class B Common Stock are entitled to one vote
for each five shares of such Class B Common Stock, and are
convertible on a one-for-one basis into Class A Common Stock,
unless the Company reasonably determines that such conversion and
subsequent ownership of Class A Common Stock would violate the
federal Communications Act of 1934, as amended, or the rules,
regulations and policies of the Federal Communications Commission
(the "FCC") promulgated thereunder. Because of certain rules,
regulations and policies of the FCC and due to other
circumstances affecting the Reporting Person, it is not unlikely
that the Reporting Person will convert its shares of Class B
Common Stock into Class A Common Stock.
The foregoing response to this Item 3 is qualified in
its entirety by reference to the Disclosure Statement, the full
text of which is filed as Exhibit 1 hereto and incorporated
herein by this reference.
Item 4. Purpose of Transaction.
The Reporting Person acquired beneficial ownership of
the shares of Common Stock described in Item 3 to which this
Statement on Schedule 13D relates as a result of the
Reorganization described in the Disclosure Statement. Such
shares of Common Stock were acquired in the ordinary course of
business for investment purposes and not with the purpose of
changing or influencing control of the issuer.
The Reporting Person may change any of its current
intentions, acquire additional shares of Common Stock or other
securities of GACC or sell or otherwise dispose of all or any
part of the Common Stock or other securities beneficially owned
by the Reporting Persons, or take any other action with respect
to GACC or any of its debt or equity securities in any manner
permitted by law. Except as disclosed in this Item 4, the
Reporting Person has no current plans or proposals which relate
to or would result in any of the events described in Items (a)
through (j) of the instructions to Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
The Reporting Person acquired beneficial ownership of
the shares of Common Stock described in Item 3 to which this
Statement on Schedule 13D relates as a result of the consummation
of the transactions contemplated by the Disclosure Statement.
(a) Lion Advisors indirectly beneficially owns
1,163,524 shares of Class A Common Stock (issuable upon
conversion of Class B Common Stock) or 10.1% of the Class A
Common Stock outstanding (calculated in accordance with Rule 13d-
3(d)(1)(i) of the Securities Exchange Act of 1934, as amended.
Beneficial ownership of such shares was acquired as described in
Item 3. As a result of the Letter Agreement (as hereinafter
defined) described in Item 6, the Reporting Person, American
Financial Corporation ("AFC") and Kemper Financial Services, Inc.
("Kemper"), the other parties to the Letter Agreement, may be
deemed to constitute a "group" within the meaning of Rule 13d-5
under the Securities Exchange Act of 1934, as amended and may be
deemed to have shared voting power over of all of the shares of
Common Stock owned, in the aggregate, by the Reporting Person,
AFC and Kemper. Pursuant to Rule 13d-4, the filing of this
Statement shall not be construed as an admission that the
Reporting Person or any other person named in Item 2 hereto is,
for the purposes of Section 13(d) or 13(g) of the Securities
Exchange Act of 1934 (or pursuant to Rule 16a-1(a)(1)
thereunder), the beneficial owner of any shares of Common Stock
held by AFC or Kemper. (Reference is made to such statements on
Schedule 13D as have been or may be filed with the Securities and
Exchange Commission by AFC and Kemper for information regarding
the such parties and their respective ownership of shares of
Common Stock.) The Reporting Person disclaims beneficial
ownership of any shares of Common Stock held by AFC or Kemper.
(b) The number of shares of Common Stock as to which
there is sole power to vote or to direct the vote, shared power
to vote or to direct the vote, sole power to dispose or direct
the disposition, or shared power to dispose or direct the
disposition for the Reporting Person is set forth in the cover
pages and such information is incorporated herein by this
reference.
(c) Except as disclosed in Item 3 herein, there have
been no reportable transactions with respect to the Common Stock
within the last 60 days by the Reporting Person.
(d) Subject to the terms of the Investment Agreement,
the Reporting Person has the sole right to receive dividends
from, or the proceeds from the sale of, the securities reported
hereon.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to the Securities of the Issuer.
The responses to Item 3, Item 4 and Item 5 are
incorporated herein by this reference.
Pursuant to a letter agreement among, inter alia, the
Reporting Person, AFC and Kemper (the "Letter Agreement"), the
Reporting Person has certain "tag-along" rights in the event that
AFC proposes to transfer or sell more than 2% of the issued and
outstanding Common Stock of the Company (or, after six months,
AFC proposes to transfer or sell more than 1% of the issued and
outstanding Common Stock of the Company in any three-month
period) to an entity not affiliated with AFC. AFC must give at
least 20 days' written notice of such proposed transaction to the
Reporting Person. Upon receipt of such notice, the Reporting
Person, has the right, which must be exercised within 10 days of
receipt of such notice, to participate in any such transaction,
subject to certain restrictions set forth in the Letter
Agreement.
In addition, in the event that an Acquisition Offer (as
defined in the Letter Agreement) is made, and certain other
conditions set forth in the Letter Agreement are met, AFC is
required to cause the shares of Common Stock beneficially owned
by it to be voted in favor of, or tendered for sale pursuant to,
an Acquisition Offer.
The foregoing response to this Item 6 is qualified in
its entirety by reference to the Letter Agreement, the full text
of which is filed as Exhibit 2 hereto and incorporated herein by
this reference.
Item 7. Material to be Filed as Exhibits.
(1) Disclosure Statement.*
(1) Letter Agreement.
____________________
* Incorporated by reference to the Disclosure Statement
and Proxy Prospectus, dated September 27, 1993, as
amended and supplemented, filed with the Securities and
Exchange Commission.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
Dated: January 31, 1994
LION ADVISORS, L.P.
By: Lion Capital Management, Inc.,
General Partner
By: /s/ Michael D. Weiner
Name: Michael D. Weiner
Title: Vice President, Lion Capital
Management,
Inc.
<PAGE>
APPENDIX A TO ITEM 2
The following sets forth information with respect to
the general partners, executive officers, directors and principal
shareholders of Lion Advisors and Lion Capital Management, Inc.,
a Delaware corporation which is the sole general partner of Lion
Advisors ("Capital Management").
The principal occupation of each of Arthur Bilger, Leon
Black, Craig Cogut and John Hannan, each of whom is a United
States citizen, is to act as an executive officer and director of
Apollo Capital Management, Inc. ("Apollo Capital"), a Delaware
corporation which is the managing general partner of Apollo
Advisors, L.P. ("Advisors"), a Delaware limited partnership, and
of Capital Management, and each is a limited partner of Advisors
and Lion Advisors. The principal business of Advisors and of
Lion Advisors is to provide advice regarding investments in
securities.
Mr. Bilger is a Vice President and a director of Apollo
Capital and Capital Management. Mr. Bilger's business address is
1999 Avenue of the Stars, Los Angeles, California 90067.
Mr. Black is the President and a director of Apollo
Capital and the President and a director of Capital Management.
Mr. Black's business address is Two Manhattanville Road,
Purchase, New York 10577.
Mr. Cogut is a Vice President and a director of Apollo
Capital and the Secretary and a Vice President and director of
Capital Management. Mr. Cogut's business address is Two
Manhattanville Road, Purchase, New York 10577.
Mr. Hannan is a Vice President and director of Apollo
Capital and a Vice President and director of Capital Management.
Mr. Hannan's business address is Two Manhattanville Road,
Purchase, New York 10577.
Peter Henry Larder, Michael Francis Benedict Gillooly,
Ian Thomas Patrick and Martin William Laidlaw, each of whom is a
British citizen, each serves as a director of Apollo Fund
Administration Limited ("Administration") which is the
administrative general partner of Advisors. Each of the above
four individuals is principally employed by CIBC Bank and Trust
Company (Cayman) Limited ("CIBC") in the following positions: Mr.
Larder, Managing Director; Mr. Gillooly, Deputy Managing
Director; Mr. Patrick, Manager-Accounting Services; and Mr.
Laidlaw, Senior Fund Accountant. CIBC is a Cayman Islands
corporation which is principally engaged in the provision of
trust, banking and corporate administration services, the
principal address of which is Edward Street, Grand Cayman, Cayman
Islands, British West Indies. It provides accounting,
administrative and other services to Administration pursuant to a
contract. Messrs. Bilger, Black, Cogut and Hannan are the
beneficial owners of the stock of Administration.
EXHIBIT 2
December 21, 1993
American Financial Corporation
One East Fourth Street
Cincinnati, Ohio 45202
Apollo Advisors, L.P.
1999 Avenue of the Stars
Suite 1900
Los Angeles, California 90067
Lion Advisors, L.P.
1999 Avenue of the Stars
Suite 1900
Los Angeles, California 90067
Kemper Financial Services, Inc.
120 South LaSalle Street
18th Floor
Chicago, Illinois 60603
Gentlemen:
This letter agreement will confirm our mutual
understanding and agreement regarding certain matters relating to
the shares of Class A Common Stock, par value $.01 per share (the
"Class A Common Stock"), of Great American Communications
Company, as reorganized (the "Company"), to be issued to (i)
American Financial Corporation ("AFC") and certain of its wholly
owned subsidiaries (collectively, the "AFC Interests") and (ii)
Kemper Financial Services, Inc. ("Kemper") on behalf of and as
investment advisor to those beneficial holders identified on the
signature page hereto (collectively, the "Kemper Interests"), and
the shares of Class B Common Stock, par value $.01 per share of
the Company (the "Class B Common Stock"; and together with the
Class A Common Stock, the "Common Stock"), to be issued to AIF
II, L.P. ("AIF") and Artemis Finance SNC ("Artemis"), or to their
respective successors and assigns permitted by this letter
agreement (collectively, the "Apollo Interests"), pursuant to a
joint plan of reorganization of Great American Communications
Company and certain of its subsidiaries, as confirmed by the
United States Bankruptcy Court for the Southern District of Ohio,
Western Division (the "Plan"). This letter shall become
effective on the effective date of the Plan (the "Effective
Date").
1. Voting of Common Stock. (a) The Apollo Interests
will (i) cause their shares of Common Stock to be represented, in
person or by proxy, at each properly noticed regular or special
meeting of stockholders of the Company, and (ii) vote all of the
shares of Common Stock beneficially owned by them in favor of the
election of the nominees for election as directors made by or at
the direction of the Board of Directors of the Company.
(b) The AFC Interests will (i) cause their shares
of Common Stock to be represented, in person, or by proxy, at
each properly noticed regular or special meeting of stockholders
of the Company, and (ii) vote all of the shares of Common Stock
beneficially owned by the AFC Interests in favor of the election
of the nominees for election as directors made by or at the
direction of the Board of Directors of the Company.
2. Tag-Along Rights. (a) If the AFC Interests have
a bona fide intention to sell or otherwise dispose of shares of
Common Stock to a person or entity or any group of persons or
entities acting in concert (other than to any Affiliate of any of
the AFC Interests) (a "Proposed Sale") pursuant to a bona fide
offer or through a series of related bona fide offers (an
"Offer") by such person, entity or group (the "Purchaser"), the
Apollo Interests and the Kemper Interests shall have the right to
require, as a condition to such Proposed Sale, that the Purchaser
purchase from the Apollo Interests and the Kemper Interests at
the same price per share of Common Stock and on the same terms
and conditions as proposed in such Proposed Sale that number of
shares of Common Stock beneficially owned by the Apollo Interests
and the Kemper Interests, respectively, and designated by them to
be included in such Proposed Sale, subject to a maximum of such
number of shares as shall result in (i) the ratio of the number
of shares sold by each of the Apollo Interests and the Kemper
Interests to the total number of shares beneficially owned by
each of them immediately prior to the consummation of the
Proposed Sale being equal to (ii) the ratio of the number of
shares sold by the AFC Interests to the total number of shares
beneficially owned by the AFC Interests immediately prior to the
consummation of the Proposed Sale. Notwithstanding the
foregoing, the provisions of this Section 2 will not apply with
respect to (i) the sale or other disposition by the AFC Interests
of a number of shares of Common Stock equal to or less than 2% of
the then issued and outstanding shares of Common Stock to any
person or entity consummated within six months after the
Effective Date, or (ii) after the expiration of six months
following the Effective Date, sales or other dispositions in an
amount that does not exceed 1% of the then issued and outstanding
shares of Common Stock in any three-month period.
(b) The AFC Interests shall give notice in writing to
the Apollo Interests and the Kemper Interests of any Proposed
Sale at least 20 business days prior to the proposed date of
consummation thereof, which notice (the "Co-Sale Notice") shall
contain the principal terms of the Proposed Sale including,
without limitation, the name and address of the Purchaser, the
purchase price, the terms and conditions of payment, the date on
which such Proposed Sale is to be consummated, and the number of
shares of Common Stock to be sold. Upon the reasonable request
of the Apollo Interests or the Kemper Interests, the AFC
Interests will provide all documents and information in its
possession relating to the Proposed Sale, the Offer and the
Purchaser.
(c) The right of the Apollo Interests and the Kemper
Interests to participate in any Proposed Sale pursuant to this
Section 2 may be exercised by the Apollo Interests and the Kemper
Interests by giving a written notice (the "Participation Notice")
to the AFC Interests not later than 10 business days after the
giving of the Co-Sale Notice. The Participation Notice must
state the number of shares of Common Stock that the Apollo
Interests and the Kemper Interests elect, subject to the
limitation thereon set forth in Section 2(a), to sell to the
Purchaser and contain a binding, irrevocable commitment to sell
such shares on the terms and conditions set forth in the Co-Sale
Notice. If the Apollo Interests or the Kemper Interests so elect
to participate in the Proposed Sale, the AFC Interests shall be
required to include in the Proposed Sale those shares of Common
Stock which the Apollo Interests or the Kemper Interests have
elected in the Participation Notice to sell (subject to the
limitation set forth in Section 2(a)). If none of the Apollo
Interests or the Kemper Interests give the Participation Notice
within the ten business day period following the giving of the
Co-Sale Notice, the AFC Interests shall have the right, for a
period of six months following the giving of the Co-Sale Notice,
to consummate the Proposed Sale to the Purchaser at the price and
in accordance with the terms and conditions of the Co-Sale Notice
without including any shares beneficially owned by the Apollo
Interests or the Kemper Interests. In the event such Proposed
Sale is not so consummated, then the provisions of this letter
agreement shall again be applicable to the Common Stock owned by
the AFC Interests.
(d) Notwithstanding anything to the contrary contained
in this letter agreement, in the event that the AFC Interests
shall breach any covenant contained in this Section 2, and such
breach results in the Apollo Interests or the Kemper Interests
being precluded from participating in a Proposed Sale that is
consummated, the sole remedy available to the Apollo Interests or
the Kemper Interests shall be to cause AFC to purchase from the
Apollo Interests or the Kemper Interests the number of shares of
Common Stock that the Apollo Interests or the Kemper Interests
would have been permitted to sell pursuant to such Proposed Sale
at the price and upon the terms of such Proposed Sale. This
remedy shall be exercisable by the Apollo Interests or the Kemper
Interests by giving notice to AFC of such breach within six
months after any of the Apollo Interests or the Kemper Interests
learns of such breach.
3. Certain Offers for the Company. If, at any time
after the fifth anniversary of the Effective Date, (i) a person
or entity shall make a bona fide offer (an "Acquisition Offer")
to (a) merge with the Company, (b) acquire all or substantially
all of the assets of the Company, or (c) acquire 50% or more of
the then issued and outstanding shares of Common Stock, in each
case for consideration consisting solely of cash and/or
securities that are either listed for trading on a national
securities exchange or designated for inclusion on the NASDAQ
National Market System, (ii) a financial advisor that is mutually
acceptable to the AFC Interests and the Apollo Interests shall
render its opinion to the Company and AFC that the Acquisition
Offer is fair to the holders of the Common Stock from a financial
point of view, and (iii) the beneficial owners of 5% or more of
the then issued and outstanding shares of Common Stock (other
than the Apollo Interests or any Affiliate of the Apollo
Interests if the Apollo Interests or any Affiliate of the Apollo
Interests made or solicited the Acquisition Offer) confirm in
writing to the Company that they are prepared to sell their
shares pursuant to, or vote in favor of, such Acquisition Offer,
then (x) the AFC Interests shall cause any representatives of AFC
on the Board of Directors or Reorganized GACC to either vote to
approve the Acquisition Offer or abstain from voting on the
approval of the Acquisition Offer in a manner that will not
prevent the consummation of the transactions contemplated by the
Acquisition Offer, and (Y) if 50% or more of the shares of Common
Stock then issued and outstanding are either voted in favor of,
or tendered for sale pursuant to, the Acquisition Offer, then the
AFC Interests will cause the shares of Common Stock then
beneficially owned by it to be voted in favor of, or tendered for
sale pursuant to, the Acquisition Offer.
4. Termination. Unless earlier terminated in
accordance with its terms, this letter agreement shall terminate
and be of no further force or effect upon the earliest of (i)
such time as the AFC Interests shall cease to be the beneficial
owner of 10% or more of the shares of Common Stock issued and
outstanding from time to time (a "10% Holder"), (ii) such time as
the Apollo Interests shall cease to be a 10% Holder, (iii) solely
with respect to the Kemper Interests, such time as the Kemper
Interests shall cease to be the collective beneficial owners of
5% or more of the shares of Common Stock issued and outstanding
from time to time, (iv) the seventh anniversary of the Effective
Date, (v) such time as the closing sales price for the Common
Stock on any securities exchange or as quoted on the NASDAQ
National Market System shall have exceeded $36.72 (as adjusted
for any stock split, stock dividend, recapitalization or other
similar transaction) for a continuous period of 120 calendar
days; provided, however, that the Company shall have given
written notice to the Apollo Interests within 12 calendar months
prior to the commencement of such 120 calendar day period that
the closing sales price for the Common Stock has exceeded $36.72
(as adjusted for any stock split, stock dividend,
recapitalization or other similar transaction) on any trading
day, or (vi) such time as the closing sales price for the Common
Stock on any securities exchange or as quoted on the NASDAQ
National Market System exceeds $36.72 (as adjusted for any stock
split, stock dividend, recapitalization or other similar
transaction) for a continuous period of 60 calendar days and a
registration statement under the Securities Act of 1933 shall
have been effective throughout such 60 day period pursuant to a
proper demand made by the Apollo Interests.
5. Actions by Representatives; Notices. Any action
required or permitted to be taken by the AFC Interests shall be
exercised by or through AFC and any notice to be provided to the
AFC Interests shall be deemed to have been given when delivered
by hand, courier or overnight delivery service to AFC at the
address listed at the beginning of this letter agreement or such
other address notice of which is given by AFC in like manner.
Any action permitted to be taken by the Apollo Interests pursuant
to Section 2 and Section 3 of this letter agreement may be only
exercised collectively by AIF, Artemis and any permitted
successor or assign of AIF or Artemis, and any notice to be
provided to the Apollo Interests shall be deemed to have been
properly given when delivered by hand, courier or overnight
delivery service to Apollo Advisors, L.P., with respect to AIF,
and Lion Advisors, L.P., with respect to Artemis, at their
respective addresses as listed at the beginning of this letter
agreement or such other address notice of which is given in like
manner. Any action required or permitted to be taken by the
Kemper Interests shall be exercised by or through Kemper and any
notice to be provided to the Kemper Interests shall be deemed to
have been given when delivered by hand, courier or overnight
delivery service to Kemper at the address listed at the beginning
of this letter agreement or such other address notice of which is
given by Kemper in like manner.
6. Certain Definitions.
(a) The term "beneficial owner", and the
corresponding term "beneficially own," shall have the meaning set
forth in Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended, as in effect on the date of this letter
agreement.
(b) An "Affiliate" with respect to a person or
entity shall mean a person or entity that controls such person or
entity, is controlled by such person or entity, or which is under
common control with such person or entity.
7. Governing Law. This letter agreement shall be
governed by and construed in accordance with the laws of the
State of Florida.
8. Entire Agreement and Revocation of Prior
Agreements. Except for any other agreements executed by the
parties as of the date of this letter agreement, this letter
agreement contains the entire understanding among the parties
hereto concerning the subject matter contained herein. There are
no representations, agreements, or understandings, oral or
written, between or among the parties hereto relating to the
subject matter of this letter agreement which are not fully
expressed herein. This letter agreement supersedes and revokes
any and all prior agreements between or among the parties hereto
relating to the subject matter of this letter agreement.
9. Specific Performance. Except as otherwise
provided in Section 1 of this letter agreement, each of AFC, AIF
and Artemis (i) acknowledges that a remedy at law for any breach
or attempted breach of this letter agreement shall be inadequate;
(ii) agrees that each other party hereto shall be entitled to
specific performance; and (iii) agrees to waive any requirements
for the securing or posting of any bond in connection with the
obtaining of any such injunctive or equitable relief.
10. Successors and Assigns.
(a) The benefits of and obligations under this
letter agreement will extend only to a successor, transferee or
assignee of Artemis or AIF that (i) is an investment company (as
defined in Section 3(a) of the Investment Company Act of 1940)
that is the transferee of any of the Common Stock beneficially
owned by AIF or Artemis, as the case may be, as of the Effective
Date, (ii) is an Affiliate of AIF or Artemis with respect to
which AIF or Artemis, or an Affiliate of AIF or Artemis, (X) is
the exclusive investment advisor or (Y) has exclusive investment
discretion, and (iii) agrees in writing to be bound by the terms
and conditions of this letter agreement.
(b) The AFC Interests shall not transfer any
shares of Common Stock to an Affiliate of AFC unless such
Affiliate agrees in writing to the terms and conditions of this
letter agreement. Except as provided in the following sentence,
the benefits of and obligations under this letter agreement will
not extend to any successor, transferee or assignee of AFC that
is not an Affiliate of AFC. The AFC Interests will not effect
any sale or other disposition of shares of Common Stock to a
person or entity (other than to an Affiliate of the AFC
Interests) (a "Transferee") in a transaction that is effected for
any consideration other than cash or marketable securities of a
series or class with an aggregate market capitalization in excess
of ten times the value of such securities that would be issuable
to the Apollo Interests and the Kemper Interests pursuant to
Section 2 (without taking in to account the securities that would
be issuable to the Apollo Interests and the Kemper Interests
pursuant to Section 2), unless (a) such Transferee agrees to be
bound by the terms and conditions of this letter agreement (with
such Transferee being substituted for the AFC Interests), or (b)
in connection with such transaction, the Apollo Interests shall
have been provided with the opportunity to sell shares of Common
Stock owned by them to such Transferee pursuant to Section 2 and
the Apollo Interests shall have elected to sell a number of
shares of Common Stock that shall result in the Apollo Interests
no longer being a 10% Holder.
(c) The benefits of and obligations under this
letter agreement will not exceed to any successor, transferee or
assignee of the Kemper Interests.
11. Counterparts. This letter agreement may be
executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one
and the same instrument.<PAGE>
Accepted and Agreed
this 21st day of December, 1993.
AMERICAN FINANCIAL CORPORATION
By:
Name:
Title:
AIF II, L.P.
By: Apollo Advisors, L.P.,
its Managing General Partner
Name:
Title:
By: Apollo Capital Management, Inc.,
its General Partner
Name:
Title:
ARTEMIS FINANCE SNC
By: Lion Advisors, L.P.,
its Attorneys-in-Fact
Name:
Title:
By: Lion Capital Management, Inc.,
its General Partner
Name:
Title:
KEMPER HIGH YIELD FUND
KEMPER DIVERSIFIED INCOME FUND
KEMPER INVESTMENT PORTFOLIOS - HIGH YIELD PORTFOLIO
KEMPER INVESTMENT PORTFOLIOS - DIVERSIFIED INCOME PORTFOLIO
KEMPER INVESTMENT PORTFOLIOS - TOTAL RETURN PORTFOLIO
KEMPER INVESTORS FUND - HIGH YIELD PORTFOLIO
KEMPER HIGH INCOME TRUST
KEMPER MERRILL LYNCH I
KEMPER MERRILL LYNCH II
By: Kemper Financial Services, Inc., as
investment advisor to the
above-referenced beneficial holders
Name:
Title:
