<PAGE> 1
As filed with the Securities and Exchange Commission on January 18, 1995.
Registration No. 33-__________
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________________
Incorporated CITICASTERS, INC. I.R.S. Employer
Under the Laws One East Fourth Street Identification No.
of Florida Cincinnati, Ohio 45202 59-2054850
(513) 562-8000
___________________________________
1993 STOCK OPTION PLAN
AND
1994 DIRECTORS' STOCK OPTION PLAN
___________________________________
Samuel J. Simon, Esq.
Citicasters Inc.
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-2542
(Agent for Service of Process)
Copy to:
Gary P. Kreider, Esq.
Keating, Muething & Klekamp
One East Fourth Street
Cincinnati, Ohio 45202
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________________________________________________________
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities To Be Price Offering Registration
To Be Registered Registered Per Share Price(1) Fee
________________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Class A 1,000,000(2)
Common Stock, Shares $26.25 $26,250,000 $9,052.00
$.01 par value
________________________________________________________________________________________________________________________________
<FN>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the registration fee; based on the average of the
high and low prices reported on the National Association of Securities Dealers Automated Quotations System - National
Market System on January 12, 1995.
(2) This Registration Statement is filed for up to 800,000 shares of Class A Common Stock issuable upon exercise of options
granted pursuant to the Citicasters Inc. 1993 Stock Option Plan and up to 200,000 shares of Class A Common Stock,
issuable upon exercise of options granted pursuant to the Citicasters Inc. 1994 Directors' Stock Option Plan.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Citicasters Inc. (the "Company") with
the Securities and Exchange Commission are incorporated herein by reference and
made a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993 as amended by Form 10-K/A Amendments
No. 1, No. 2 and No. 3.
2. The Company's Quarterly Report on Form 10-Q for the quarters
ended March 31, 1994, June 30, 1994 and September 30, 1994.
3. The Company's Form 8-K current reports dated February 18, 1994
and October 12, 1994
4. The description of the Company's Class A Common Stock
contained in Registration Statement No. 33-63036 on Form S-4.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
Common Stock offered has been sold or which deregisters all Common Stock then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 607.0850 of the Florida Business Corporation Act (the "FBCA")
empowers a corporation to indemnify its directors, officers, employees or
agents and to purchase insurance with respect to liability arising out of their
capacity or status as
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<PAGE> 3
directors, officers, employees or agents. The FBCA provides further that, in
addition to the indemnification permitted thereunder, a corporation is
empowered to make any other or further indemnification of any of its directors,
officers, employees or agents under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, except
an indemnification against gross negligence or willful misconduct.
The Restated By-Laws of the Registrant provide for indemnification of
Registrant's directors and officers against certain liabilities. The
Registrant also maintains directors' and officers' liability insurance for the
directors and principal officers of the Registrant.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits*
4.1 1993 Stock Option Plan.
4.2 1994 Directors' Stock Plan.
5 Opinion of Keating, Muething & Klekamp.
23.1 Consent of Keating, Muething & Klekamp (contained on Exhibit 5).
23.2 Consent of Independent Auditors.
24 Power of Attorney (contained on the signature page).
____________________
* All exhibits filed herewith.
Item 9 Undertakings
9.1 The undersigned Registrant hereby undertakes to file during
any period in which offers or sales are being made, a post- effective amendment
to this Registration Statement (i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, (ii) to reflect in the
prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post- effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement and (iii) to
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<PAGE> 4
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement; provided, however, that (i) and
(ii) shall not apply if the information required to be included in a
post-effective amendment is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this Registration Statement.
9.2 The undersigned Registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
9.3 The undersigned Registrant hereby undertakes to remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
9.4 The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
9.5 Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cincinnati, State of Ohio, on the 16th day of
January, 1995.
CITICASTERS INC.
By:/s/John P. Zanotti
-----------------------
John P. Zanotti
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated. Persons whose names are marked
with an asterisk (*) below hereby designate John P. Zanotti or Gregory C.
Thomas as their attorney-in-fact to sign all amendments, including any
post-effective amendments, to this Registration Statement.
Signature Capacity Date
- --------- -------- ----
/s/John P. Zanotti Chief Executive Officer and January 16, 1995
- ----------------------- Director (Principal Executive
John P. Zanotti Officer)
/s/Gregory C. Thomas Executive Vice President, Chief January 16, 1995
- ----------------------- Financial Officer and Treasurer
Gregory C. Thomas (Principal Accounting and
Financial Officer)
/s/James E. Evans Director January 16, 1995
- -----------------------
James E. Evans*
/s/Carl H. Lindner Director January 16, 1995
- -----------------------
Carl H. Lindner*
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<PAGE> 6
/s/S. Craig Lindner Director January 16, 1995
- -------------------------
S. Craig Lindner*
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<PAGE> 7
EXHIBIT INDEX
Exhibit Number Description of Exhibit
- -------------- ----------------------
4.1 1993 Stock Option Plan
4.2 1994 Directors' Stock Option Plan
5 Opinion of Keating, Muething & Klekamp
23.1 Consent of Keating, Muething & Klekamp
(contained on Exhibit 5).
23.2 Consent of Independent Auditors
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<PAGE> 1
Exhibit 4.1
GREAT AMERICAN COMMUNICATIONS COMPANY
1993 STOCK OPTION PLAN
Section I. PURPOSE. The purpose of the Plan is to promote the
interests of the Company and its shareholders by providing a means for selected
Key Employees of the Company and its Subsidiaries to acquire a proprietary
interest in the Company, thereby strengthening the Company's ability to attract
capable management personnel and providing an inducement for Key Employees to
remain in the employ of the Company or its subsidiaries and to perform at their
maximum levels. It is intended that Options granted pursuant to this Plan may
constitute Incentive Stock Options or Nonqualified Stock Options, as
hereinafter set forth.
Section II. DEFINITIONS. Unless the context clearly indicates
otherwise, the following terms, when used in this Plan, shall have the meanings
set forth below:
A. "Board" shall mean the Board of Directors of the Company.
B. "Code" shall mean the Internal Revenue Code of 1986, as
it may be amended from time to time.
C. "Committee" shall mean the Compensation Committee of the
Board, appointed by the Board to administer the Plan and perform the
functions set forth in Section 3 of this Plan.
D. "Common Stock" shall mean the Class A Common Stock, par
value $.01 per share, of the Company, and any other stock or
securities resulting from the adjustment thereof or substitution
therefor as described in Section 12 of this Plan.
E. "Company" shall mean Great American Communications
Company, a Florida corporation.
F. "Fair Market Value" with respect to the Common Stock as
of any date shall mean 1. in the event the Common Stock is listed on a
national securities exchange, the closing price as reported for
composite transactions on that date, or, if no sales occurred on that
date, then the closing price on the next preceding date on which such
sales of Common Stock occurred; 2. in the event the Common Stock is
not listed on a national securities exchange, the mean between the
high bid and low asked prices reported for shares of Common Stock
traded over-the-counter on that date, or, if no bid and asked prices
were reported on that date, then the mean between the high bid and low
asked prices on the next preceding date on which such prices were
reported; or 3. in the event there are no over-the- counter prices for
the Common Stock and it is not listed on a national securities
exchange, the fair market value as determined by the Committee in its
discretion.
G. "Incentive Stock Option" shall mean an Option granted
under the Plan and designated as such by the Committee which meets the
requirements of Section 422A of the Code.
H. "Key Employee" shall mean a regular employee, whether or
not a director of the Company or a Subsidiary, who is an officer or
holds a managerial or other key position as determined by the
Committee, and who, in the judgment of the Committee, has demonstrated
a capacity for making a substantial contribution to the success of the
business of the Company or a Subsidiary. A director of GACC who is
not a Key Employee described in the previous sentence shall also be
eligible with respect to the grant of Non-qualified Stock Options.
<PAGE> 2
I. "Nonqualified Stock Option" shall mean an Option granted
under the Plan other than an Incentive Stock Option.
J. "Option" shall mean, unless otherwise specifically
limited under any provision of this Plan, both an Incentive Stock
Option and a Nonqualified Stock Option granted pursuant to this Plan.
K. "Option Price" shall mean the price at which Common Stock
may be purchased under an Option, as provided in Section 7.(e) of this
Plan.
L. "Optionee" shall mean a Key Employee granted an Option
under the Plan.
M. "Parent" shall mean any corporation which qualifies as a
parent corporation of the Company within the meaning of Section 425(e)
of the Code.
N. "Plan" shall mean the Great American Communications
Company 1993 Stock Option Plan.
O. "Stock Option Agreement" shall mean the written agreement
between an Optionee and the Company evidencing the grant of an Option
and setting forth the terms and conditions of the grant.
P. "Subsidiary" shall mean any corporation which qualifies
as a subsidiary corporation of the Company within the meaning of
Section 425(f) of the Code.
Section III. ADMINISTRATION OF THE PLAN.
A. COMMITTEE. The Plan shall be administered by the
Committee which shall include not less than two members of the Board
who are "disinterested persons" as defined in Rule 16b-3(d)(3)
promulgated under the Securities Exchange Act of 1934, as amended (the
"1934 Act"). The members of the Committee shall serve at the pleasure
of the Board, which shall have the power, at any time and from time to
time, to remove members from the Committee or to add members thereto.
Vacancies on the Committee shall be filled by action of the Board.
B. DUTIES AND POWERS OF THE COMMITTEE. The Committee shall
have the full power and authority, but subject to and not inconsistent
with the express provisions of the Plan, to administer the Plan and to
exercise all the powers and authorities either specifically granted to
it under the Plan or necessary or advisable in the administration of
the Plan, including, without limitation, the authority 1. to grant
Options which have received any requisite approval of the Board and to
determine which Options shall constitute Incentive Stock Options and
which Options shall constitute Nonqualified Stock Options; 2. to
determine the employees to whom, and the time or times at which,
Options shall be granted; 3. to determine the number of shares of
Common Stock to be covered by each Option; 4. to determine the Option
Price of Common Stock subject to an Option; 5. to determine the
duration of the exercise period of Options and the time or times at
which Options may be exercised and the extent of exercisability of
Options; 6. to determine the terms and provisions of Stock Option
Agreements (which need not be identical) entered into in connection
with Options granted under the Plan, including such terms and
provisions as shall in the judgment of the Committee be necessary or
advisable in order to conform to any applicable laws or regulations,
as the same may be amended from time to time; and 7. to make all other
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<PAGE> 3
determinations necessary or advisable for the administration of the
Plan. Subject to the express provisions of the Plan, the Committee
may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Stock Option Agreement in such
manner and to the extent it shall determine in order to carry out the
purposes of the Plan.
The Committee shall have full power and authority to construe and
interpret the Plan and the respective Stock Option Agreements and to establish,
amend or rescind such rules, regulations and procedures as the Committee deems
necessary or appropriate for the proper administration of the Plan.
The determinations of the Committee on the foregoing matters and any
other matters arising in connection with the construction, administration,
interpretation and effect of the Plan and of the Committee's rules and
regulations thereunder shall (except as otherwise specifically provided in the
Plan) be final, binding and conclusive.
C. COMMITTEE MEETINGS AND ACTIONS. The Committee may select
one of its members as Chairman. The Committee shall hold its meetings
at such times and places as it shall determine. All decisions and
determinations of the Committee shall be made by not less than the
affirmative vote of a majority of its members. Actions may be taken
by the Committee at a duly conveyed meeting (including a meeting by
telephone conference call) or by unanimous written consent.
Section IV. ELIGIBILITY. Options under the Plan may be granted only
to Key Employees of the Company and its Subsidiaries. A director of the
Company who is not also a Key Employee shall only be eligible to receive a
Non-qualified Option under this Plan. More than one Option may be granted to
the same Optionee and be outstanding concurrently hereunder.
Section V. SHARES SUBJECT TO THE PLAN.
A. AGGREGATE NUMBER OF SHARES AVAILABLE. Subject to
the adjustments provided for in Section 12 of this Plan, the aggregate
number of shares of Common Stock for which Options may be granted
under the Plan shall be 600,000 shares. Shares delivered by the
Company pursuant to exercises of Options may be authorized but
unissued shares of Common Stock, issued shares of Common Stock which
have been reacquired by the Company, or a combination thereof, as the
Board or the Committee shall from time to time determine.
B. EFFECT OF EXPIRATION OF OPTIONS. In the event that
any outstanding Option under the Plan for any reason expires or is
terminated without having been exercised in full, the shares of Common
Stock subject to but not issued under such Option shall again be
available for the granting of Options under the Plan.
C. EFFECT OF EXERCISES. If all or any portion of an Option
is exercised, the shares with respect to which such Option is
exercised, shall not thereafter be available for the granting of other
Options under the Plan.
Section VI. STOCK OPTIONS AGREEMENTS. Each Option shall be evidenced
by a written Stock Option Agreement, which shall be executed by the Company and
the Optionee, containing such terms and conditions, not inconsistent with the
Plan, as shall be determined by the Committee. Stock Option Agreements
evidencing Incentive Stock Options shall contain such terms and conditions,
among others, as may be necessary in the opinion of the Committee to qualify
them as an incentive stock option under the Code.
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Section VII. TERMS AND CONDITIONS OF OPTIONS. Each Option granted
under the Plan shall comply with and be subject to the following terms and
conditions, as well as such other terms and conditions as may be determined by
the Committee and specified in the related Stock Option Agreement:
A. NUMBER OF SHARES. The number of shares of Common Stock
to which an Option relates shall be determined by the Committee and
specified in the related Stock Option Agreement.
B. TYPE OF OPTION. Each Stock Option Agreement shall
specify the type of Option granted and evidenced thereby, I.E.,
whether the Option is an Incentive Stock Option or a Nonqualified
Stock Option.
C. DATE OF GRANT; EXERCISE PERIOD. The date of grant of any
Option shall be the date on which the Committee shall award the Option
(or the earlier date, if applicable, that the Board specifically
approves such grant) if an immediate grant of such Option is
contemplated, or the date contemplated as the date of grant if the
Committee imposes a condition on the granting of such Option. Options
granted under the Plan shall be for such periods as may be determined
by the Committee and set forth in the related Stock Option Agreements,
subject to the provisions of Section 9 hereof regarding early
termination upon the occurrence of certain events and subject to the
further provisions of this paragraph 7.(c). The exercise period of an
Incentive Stock Option shall not exceed ten (10) years from the date
of grant of such Option.
D. VESTING OF OPTIONS. Subject to the further provisions of
this paragraph (c) regarding Incentive Stock Options and unless
otherwise recommended to the Committee by the Board, all Options shall
become exercisable upon the first anniversary of the Date of Grant to
the extent of Twenty Percent (20%) of the total shares covered by the
Option with an additional Twenty Percent (20%) of the total shares
covered by the Option becoming exercisable on each succeeding
anniversary. This right of exercise shall be cumulative and shall be
exercisable in whole or in part.
E. OPTION PRICE. The Option Price per share of the Common
Stock subject to an Option granted under the Plan shall be determined
by the Committee at the time the Option is granted, and shall be
subject to the following conditions:
1. NONQUALIFIED STOCK OPTIONS - The Option Price per
share of Common Stock subject to a Nonqualified Stock Option
may be less than the Fair Market Value per share of the Common
Stock on the date of grant, but shall not be less than the par
value per share of Common Stock.
2. INCENTIVE STOCK OPTIONS - The Option Price per share
of Common Stock subject to an Incentive Stock Option shall not
be less than the greater of (a) 100% of the Fair Market Value
per share of the Common Stock on the date of grant, or (b) the
par value per share of the Common Stock.
Section VIII. METHOD OF EXERCISE; PAYMENT OF OPTION PRICE
A. METHOD OF EXERCISE. An Option may be exercised as to any
or all full shares of Common Stock as to which the Option has become
exercisable in accordance with the terms of the related Stock Option
Agreement and the provisions of this Plan by delivering to the Company
written notice of such exercise in the manner hereinafter specified in
Section 17, provided, however, that an Option may not be exercised at
any one time as to less than 1,000 shares (or such number of shares as
to which the Option is then exercisable if such number of shares is
less than 1,000 shares). Such written notice shall specify the number
of shares of Common Stock with respect to which the Option is being
exercised and shall be accompanied by payment in full of the
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Option Price for such shares. The date of exercise of an Option or
portion thereof shall be the date of receipt by the Company of such
written notice as determined in accordance with the provisions of
Section 17 of the Plan.
B. PAYMENT OF OPTION PRICE. Payment for shares purchased
upon exercise of an Option may be made
1. in cash (including a check, bank draft or money
order), or
2. with the approval of the Committee, by delivering to
the Company shares of Common Stock already owned by the
Optionee ("Previously Held Shares") having a Fair Market Value
(determined as of the day preceding the date on which the
Option is exercised) equal to the cash Option Price of the
shares of Common Stock as to which the Option is being
exercised, or
3. with the approval of the Committee, by a combination
of the methods described in (i) and (ii) above, or
4. with the approval of the Committee, by any other
method or in any other form authorized by the Committee and
reflected in the related Stock Option Agreement or in any
written notice relative thereto as may be from time to time
delivered by the Committee to the Optionee.
Section IX. DEATH, DISABILITY OR OTHER TERMINATION OF EMPLOYMENT
A. DEATH. In the event an Optionee dies (i) while in the
employ of the Company or a Subsidiary or (ii) within three (3) months
of the termination of such employment (other than termination for
cause or voluntary termination without the consent of the Company or
the Subsidiary, as the case may be), his Option may be exercised,
solely to the extent that the Optionee was entitled to exercise the
Option at the date of his death or, if earlier, the date of his
termination, by the person or persons to whom such Optionee's rights
under the Option shall pass by will or the laws of descent and
distribution, at any time or from time to time within one (1) year
after the date of Optionee's death or prior to the expiration of the
period for which the Option was granted, whichever is the shorter
period.
B. DISABILITY. In the event an Optionee's employment by the
Company or a Subsidiary is terminated because of the Optionee's
permanent disability, the Optionee may exercise his Option, solely to
the extent that he was entitled to do so at the date of termination of
his employment, at any time or from time to time within one (1) year
after the date of such termination of employment or prior to the
expiration of the period for which the Option was granted, whichever
is the shorter period.
C. OTHER TERMINATION OF EMPLOYMENT. In the event the
Optionee's employment by the Company or a Subsidiary is terminated
other than by death or permanent disability as provided by paragraphs
(a) and (b), respectively, of this Section 9 and other than for cause
or by the voluntary action of the Optionee without the consent of the
Company or Subsidiary employing the Optionee, the Optionee may
exercise his Option, solely to the extent that he was entitled to do
so at the date of termination of his employment, at any time or from
time to time within ninety (90) days after the date of such
termination of employment or prior to the expiration of the period for
which the Option was granted, whichever is the shorter period. In the
event the Optionee's employment by the Company or a Subsidiary is
terminated for cause or by the voluntary action of the Optionee
without
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<PAGE> 6
the consent of the Company or Subsidiary employing the Optionee, his
Option shall terminate at the date of termination of his employment.
D. FAILURE TO EXERCISE. To the extent an Option or any
portion thereof is not exercised within the limited period provided in
paragraphs (a), (b) or (c) of this Section 9, whichever is applicable,
all rights pursuant to such Option will cease and terminate at the
expiration of such period.
E. MATTERS RELATING TO TERMINATION OF EMPLOYMENT. The
Committee in its absolute discretion shall determine the effect of all
matters and questions relating to the termination of employment of an
Optionee, including, but not limited to, questions as to whether a
termination of employment resulted from permanent disability or was
voluntary or involuntary on the part of the Optionee and questions of
whether particular leaves of absence constitute terminations
employment.
Section X. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Subject
to the terms and conditions and within the limitations of the Plan, the
Committee in its discretion may modify, extend, or renew outstanding Options
granted under the Plan, or accept the surrender of outstanding Options (to the
extent not theretofore exercised) and authorize the granting of new Options
hereunder in substitution therefor. Notwithstanding the foregoing, however, no
modification (other than adjustments as provided by Section 12 hereof) of an
Option shall, without the consent of the Optionee, alter or impair any rights
or obligations under any Option theretofore granted to such Optionee.
If the terms of an Incentive Stock Option are "modified, extended or
renewed" within the meaning of Section 424(h) of the Code and interpretations
thereunder, such modification, extension or renewal shall be considered the
granting of a new Incentive Stock Option.
Section XI. WITHHOLDING TAXES. The Company shall be entitled to
require, as a condition to its delivery of shares of Common Stock upon the
exercise of an Option that the Optionee pay to the Company an amount sufficient
to satisfy all present or estimated future federal, state and local withholding
tax requirements related thereto.
Subject to the further provisions of this Section 11 and to the
disapproval of the Committee, an Optionee may elect to satisfy applicable
withholding tax liabilities by 1. having the Company withhold from the shares
of Common Stock otherwise issuable to the Optionee upon his exercise of an
Option that number of shares of Common Stock having a Fair Market Value on the
day preceding the date of such exercise sufficient to satisfy the amount of
such tax liabilities or 2. delivering to the Company that number of Previously
Held Shares having a Fair Market Value on the day preceding the date of such
exercise sufficient to satisfy the amount of such tax liabilities. Any such
election will be irrevocable and must be made prior to the date the Option
exercise becomes taxable. In addition, if the Optionee is a director or an
officer of the Company within the meaning of Section 16(b) of the 1934 Act,
such election may not be made within six months of the grant of the Option
(except that this limitation will not apply in the event of the death or
disability of the Optionee prior to the expiration of the six- month period),
and such election shall be made either in the ten-day "window period" following
the release of the Company's quarterly or annual summary earnings statement as
provided by Rule 16b-3(e)(iii) under the 1934 Act, or at least six months prior
to the date the Option exercise becomes taxable.
The Company intends that this Section 11 shall comply with the
requirements of Rule 16b-3 under the 1934 Act, as the same may be interpreted
or amended from time to time during the term of the Plan. Should any provision
of this Section 11 not be necessary to comply with the requirements of the Rule
or should any additional provisions be necessary for this Section 11 to so
comply, the Committee may amend the Plan to add to or modify the provisions of
the Plan accordingly.
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<PAGE> 7
Section XII. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The
total number and character of shares available for Options under the Plan, the
number and character of shares subject to outstanding Options and the Option
Price shall be appropriately adjusted by the Committee in the event of any
change in the number or character of outstanding shares of Common Stock
resulting from a stock dividend, subdivision or combination of shares, or
reclassification. In the event of a merger or consolidation of the Company or
a tender offer for shares of Common Stock, the Committee may make such
adjustments with respect to Options under the Plan and take such other actions
as it deems necessary or appropriate to reflect, or in anticipation of, such
merger, consolidation or tender offer, including, without limitation, the
substitution of new Options, the termination or adjustment of outstanding
Options, the acceleration of Options, or the removal of limitations or
restrictions on outstanding Options.
Section XIII. NONTRANSFERABILITY. No Option granted under the
Plan shall be transferable by an Optionee otherwise then by will or by the laws
of descent and distribution, and an Option may be exercised, during the
lifetime of the Optionee, only by the Optionee.
Section XIV. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Plan
or in any Option granted hereunder shall confer upon an Optionee any right to
continue in the employ of the Company or a Subsidiary nor interfere or affect
in any way the right of the Company or a Subsidiary to terminate an Optionee's
employment at any time for any reason.
Section XV. RIGHTS AS A SHAREHOLDER. An Optionee shall have no
rights as a shareholder with respect to any shares of Common Stock subject to
his Option until the date of issuance to him of a stock certificate or
certificates for such shares. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such stock certificate is issued, except as provided in Section 12 hereof.
Section XVI. COMPLIANCE WITH LAW AND OTHER CONDITIONS. The obligation
of the Company to issue or deliver shares of Common Stock upon the exercise of
Options shall be subject to all applicable laws, regulations, rules and
approvals of applicable governmental and regulatory authorities.
Notwithstanding any other provisions of this Plan or any Stock Option
Agreements, the Company shall not be required to issue or deliver any
certificate or certificates for shares of Common Stock purchased upon the
exercise of an Option prior to the fulfillment of the following conditions:
1. The listing, or approval for listing upon notice of
issuance, of such shares on any securities exchange on which the
Common Stock is then listed;
2. The registration or other qualification of such shares
under any state or federal securities law or regulation which the
Committee shall, in its absolute discretion upon the advice of
counsel, deem necessary or advisable; and
3. The obtaining of any other consent, approval, permit or
other clearance from any state or federal governmental or regulatory
agency which the Committee shall, in its absolute discretion upon the
advice of counsel, determine to be necessary or advisable.
With respect to Options granted to any Optionee who is an officer of
the Company or is otherwise subject to Section 16 of the 1934 Act, the
Committee may, in its absolute discretion at the time of the granting of an
Option or the exercise thereof, make such provisions as may be necessary to
assure compliance with Rule 16b-3 under the 1934 Act.
Section XVII. NOTICES. Whenever any notice is required or
permitted to be given under the Plan or any Stock Option Agreement, such notice
must be in writing and personally delivered or sent by courier or by mail. Any
such notice shall be deemed effectively given or delivered upon personal
deliver
-7-
<PAGE> 8
or twenty-four hours after delivery to a courier service which guarantees
overnight delivery or five (5) days after deposit with the U.S. Post Office, by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the person who is to receive such notice at the address which such
person has theretofore specified by written notice delivered in accordance
herewith. The Company or an Optionee may change, at any time and from time to
time, by written notice to the other, the address which it or he had
theretofore specified for receiving notices. Until changed in accordance
herewith, the Company and each Optionee shall specify as its or his address for
receiving notices the address set forth in the Stock Option Agreement
pertaining to the shares of Common Stock to which such notice relates.
Section XVIII. AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN.
The Plan may be wholly or partially amended or otherwise modified, suspended or
terminated at any time or from time to time by the Board or the Committee;
provided, however, that except as expressly authorized by the Plan, the Board
shall not, without the approval of the holders of a majority of the outstanding
shares of the Company's stock entitled to vote thereon, effect any change to
the Plan if such change would cause the Plan to cease to satisfy any applicable
conditions of Rule 16b-3.
Further, no such amendment, suspension or termination, other than adjustments
for changes in capitalization as provided in Section 12 hereof, shall adversely
affect or impair any outstanding Option without the written consent of the
Optionee affected thereby.
Section XIX. EFFECTIVE DATE; DURATION.
A. EFFECTIVE DATE. The Plan shall become effective upon the date
of its adoption by the Board provided that, within twelve months after the date
the Plan is adopted by the Board, the Plan is approved and adopted by the
holders of a majority of the outstanding shares of stock of the Company
entitled to vote thereon. If the Plan shall not be subsequently approved and
adopted by the shareholders of the Company as specified herein, the Plan and
all Options granted hereunder shall be null and void and any obligation
pursuant to the subsequent exercise of any Option previously granted shall not
be binding upon the Company. To the extent an Optionee has already purchased
and paid for any shares received under the Plan, the Optionee may retain the
ownership of said shares; however, the prior exercise of said Option shall not
constitute the exercise of an Incentive Stock Option.
B. DURATION. Unless earlier terminated by the Board or the
Committee pursuant to the provisions of the Plan, the Plan shall terminate on
the tenth anniversary of its effective date as hereinbefore specified. No
Options shall be granted under the Plan after such termination date.
(NG3-OPT.PLN)
-8-
<PAGE> 1
Exhibit 4.2
CITICASTERS INC.
1994 DIRECTORS STOCK OPTION PLAN
1. PURPOSE
The purpose of the Citicasters Inc. 1994 Directors Stock Option Plan
(the "Plan") is to aid Citicasters Inc. (the "Company") in attracting and
retaining directors of outstanding competence, dedication and loyalty.
Consistent with this objective, the Plan provides for the grant to non-employee
directors of Stock Options ("Options") pursuant to the terms and conditions
hereinafter set forth. As used herein, the term "Subsidiary" means any
domestic or foreign corporation, at least 50% of the outstanding voting stock
or voting power of which is beneficially owned, directly or indirectly, by the
Company.
2. EFFECTIVE DATE
The Plan shall become effective upon the date of its adoption by the
Board of Directors of the Company (the "Board"), provided that, within twelve
months after the Plan is adopted by the Board, the Plan is approved by the
holders of a majority of the outstanding shares of stock of the Company
entitled to vote thereon (the "Effective Date").
3. ADMINISTRATION
The Plan shall be administered by the Compensation Committee of the
Board of Directors or such other committee appointed by the Board of Directors
(the "Committee"). The Committee will consist of two or more directors who may
also be eligible to participate in the Plan.
4. ELIGIBILITY
Options under the Plan shall be granted only to persons who are
directors of the Company and who are not employees of the Company or a
Subsidiary.
5. GRANT OF OPTIONS
Options shall automatically be granted pursuant to the terms of this
Section without further action by the Board of Directors. The date on which
Options are granted hereunder shall be referred to herein as the "Date of
Grant."
<PAGE> 2
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5.1 On the Effective Date, each person serving as a director of
the Company who is not an employee of the Company or a Subsidiary shall be
granted 10,000 Options.
5.2 On each September 1 following the Effective Date during the
term of the Plan, each person serving as a director of the Company on such date
who is not an employee of the Company or a Subsidiary shall be granted 1,000
Options.
5.3 Each person who is elected as a director of the Company, who
(i) was not a director of the Company on the Effective Date, and (ii) is not an
employee of the Company or a Subsidiary on the date of election as a director,
shall be granted 10,000 Options on the date such person is elected a director.
5.4 All Options granted pursuant to the Plan shall have an Option
Price determined pursuant to Section 7.1 hereof.
6. SHARES SUBJECT TO THE PLAN
6.1 The shares to be issued upon the exercise of the options
granted under the Plan shall be shares of Common Stock, no par value, of the
Company. Either treasury or authorized and unissued shares of Common Stock, or
both, as the Board of Directors shall from time to time determine, may be so
issued. No shares of Common Stock which are the subject of any lapsed, expired
or terminated options may be made available for reoffering under the Plan.
6.2 Subject to the provisions of Section 6.3, the aggregate number
of shares of Common Stock for which options may be granted under the Plan shall
be 200,000 shares.
6.3 The aggregate number of shares pursuant to the provisions of
the Plan shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from any stock dividend,
stock split or similar event and may, in the sole discretion of the Board of
Directors of the Company, be similarly adjusted for any other capital
adjustment (including a reclassification of shares or recapitalization or
reorganization of the Company) or the distribution to holders of shares of
Common Stock of rights, warrants, assets or evidences of indebtedness.
7. TERMS AND CONDITIONS OF OPTIONS
Each Option granted pursuant to the Plan shall be evidenced by a
written agreement (the "Agreement") between the Company and the person to whom
the Option is granted (the "Grantee") in such form or forms as the Committee,
from time to time, shall prescribe, which shall comply with and be subject to
the terms and conditions
<PAGE> 3
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of this Paragraph 7. In addition, the Committee may, in its absolute
discretion, include in any such Grant other terms, conditions and provisions
that are not inconsistent with the express provisions of the Plan.
7.1 OPTION PRICE. The purchase price of the shares of Common
Stock which may be acquired pursuant to the exercise of any option granted
pursuant to the Plan shall be the last closing sale price reported on the date
of grant ("Option Price").
7.2 DURATION OF OPTIONS. Each Option granted under the Plan shall
expire and all rights pursuant thereto shall cease on the date which shall be
the tenth anniversary of the Date of Grant (the "Expiration Date").
7.3 VESTING OF OPTIONS. Each Option granted hereunder may be
exercised to the extent that the Grantee is vested in such Option. The Options
will vest according to the following schedule:
<TABLE>
<CAPTION>
Number of Years the Grantee has remained
a director of the Company following Options in which a
the Date of Grant Grantee is Vested
----------------------------------------- ------------------
<S> <C>
Under one . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0%
At least one but less than two. . . . . . . . . . . . . . . . . . . . . . 20%
At least two but less than three . . . . . . . . . . . . . . . . . . . . 40%
At least three but less than four . . . . . . . . . . . . . . . . . . . . 60%
At least four but less than five . . . . . . . . . . . . . . . . . . . . 80%
Five or more . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100%
</TABLE>
Anything contained in this Paragraph 7.3 to the contrary
notwithstanding, a Grantee shall become fully (100%) vested in each of his or
her Options under the following circumstances: (i) upon termination of the
Grantee's service as a director of the Company for reasons of death, Disability
or Retirement (as such terms are defined in Paragraphs 7.7.4 and 7.7.5); (ii)
if the Committee, in its sole discretion, determines that acceleration of the
Option vesting schedule would be desirable for the Company; or (iii) if such
Options vest pursuant to Paragraph 7.4.
7.4 MERGER, CONSOLIDATION, ETC. If the Company shall, pursuant to
action by its Board of Directors, at any time propose to merge into,
consolidate with, or sell or otherwise transfer all or substantially all of its
assets to another corporation and provision is not made pursuant to the terms
of such transaction for the assumption by the surviving, resulting or acquiring
corporation of outstanding Options or for substitution of new Options therefor,
the Committee shall cause written notice of the proposed transaction to be
given to each Grantee not less than twenty days prior to the anticipated
effective date of the proposed transaction, and his or her Options shall become
fully (100%) vested and, prior to a date specified in such notice, which shall
be not more than ten
<PAGE> 4
- 4 -
days prior to the anticipated effective date of the proposed transaction, each
Grantee shall have the right to exercise his or her Options. Each Grantee, by
so notifying the Company in writing, may in exercising his or her Options,
condition such exercise upon, and provide that such exercise shall become
effective at the time of, but immediately before, the consummation of the
transaction. If the transaction is consummated, each Option, to the extent not
previously exercised before the date specified in the foregoing notice, shall
terminate on the effective date of such consummation. If the transaction is
abandoned, (i) any Option not exercised shall continue to be available for
exercise in accordance with other provisions of the Plan and (ii) to the extent
that any Option not exercised before such abandonment shall have vested solely
by operation of this Paragraph 7.4, such vesting shall be deemed annulled, and
the vesting schedule set forth in or pursuant to Paragraph 7.3 shall be
reinstituted, as of the date of such abandonment.
7.5 EXERCISE OF OPTIONS. A person entitled to exercise an Option
may exercise it to the extent vested pursuant to Paragraph 7.3 in whole or in
part during any period beginning on the third business day following the date
of release of the financial data specified in Rule 16b-3(e)(1)(ii) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and ending on
the twelfth business day following such date (the "Window Period"), by
delivering to the Secretary of the Company written notice (the "Notice")
specifying the number of Options being exercised. The payment of the Option
Price shall be either in cash or by delivery of shares of Common Stock of the
Company having a fair market value equal to the purchase price on the date of
exercise of the Option, or by any combination of cash and such shares.
7.6 NONTRANSFERABILITY. Options shall not be transferable other
than by will or the laws of descent and distribution and may be exercised,
during the lifetime of the Grantee, only by the Grantee.
7.7 TERMINATION OF SERVICE AS A DIRECTOR. Unless otherwise
determined by the Committee, the following rules shall apply in the event of
Grantee's termination of service as a director of the Company.
7.7.1 Except as provided in Paragraph 7.7.4 or 7.7.5, in
the event of a Grantee's termination of service as a director of the
Company either (1) as a result of his removal as a director for cause
or (2) as a result of resignation of the director, his or her Option
shall immediately terminate.
7.7.2 In the event of the Grantee's termination of service
as a director under circumstances other than those specified in
Paragraph 7.7.1 hereof and for reasons other than
<PAGE> 5
- 5 -
death, Disability (as defined in Paragraph 7.7.4) or Retirement (as
defined in Paragraph 7.7.5), his or her Options shall terminate on the
date which is 90 days from the date of such termination of service as
a director or on its Expiration Date, whichever shall first occur;
provided, however, that if the Grantee is subject to the provisions of
Section 16(a) of the Exchange Act on the date of termination of
service as a director, such Options shall terminate (x) on the date
which is the end of the first Window Period following the later of 90
days from the date of such termination of service as a director or six
months and ten days after the date of Grant of such Options or (y) on
its Expiration Date, whichever shall first occur.
7.7.3 In the event of the death of a Grantee while he or
she is serving as a director of the Company, such Option shall
terminate on the first anniversary of the Grantee's death or on its
Expiration Date, whichever shall first occur.
7.7.4 In the event of the Grantee's termination of service
as a director due to mental or physical infirmity of the Company
("Disability"), his or her Options shall terminate on first
anniversary of such Disability, or on its Expiration Date, whichever
shall first occur.
7.7.5 In the event that the Grantee's service as a director
terminates after five or more years of service as a director
("Retirement"), his or her Options shall terminate on the second
anniversary of the date of such Retirement or on its Expiration Date,
whichever shall first occur.
7.7.6 Anything contained in this Paragraph 7.7 to the
contrary notwithstanding, an Option may only be exercised following
the Grantee's termination of service as a director for reasons other
than death, Disability or Retirement if, and to the extent that, such
Option was exercisable immediately prior to such termination service
as a director.
7.8 NO RIGHTS AS STOCKHOLDER OR TO CONTINUE AS A DIRECTOR. No
Grantee shall have any rights as a stockholder of the Company with respect to
any shares of Common Stock prior to the date of issuance to him or her of a
certificate representing such shares issued pursuant to Paragraph 7.5, and
neither the Plan nor any Option granted under the Plan shall confer upon a
Grantee any right to continue to serve as a director.
8. ISSUANCE OF SHARES; RESTRICTIONS
8.1 Unless any shares of Common Stock to be issued by the Company
under the Plan have been registered under the Securities
<PAGE> 6
- 6 -
Act of 1933, as amended (the "Securities Act"), and, in the case of any Grantee
who may be deemed an "affiliate" of the Company as defined in Rule 405 under
the Securities Act, such shares have been registered under the Securities Act
for resale by such Grantee, or unless the Company has determined that an
exemption from registration is available, the Company may require prior to and
as a condition of the issuance of any shares of Common Stock that the person
receiving such shares hereunder furnish the Company with a written
representation in a form prescribed by the Committee to the effect that such
person is acquiring such shares solely with a view to investment for his or her
own account and not with a view to the resale or distribution of all or any
part thereof, and that such person will not dispose of any of such shares
otherwise than in accordance with the provisions of Rule 144 under the
Securities Act unless and until either the shares are registered under the
Securities Act or the Company is satisfied that an exemption from such
registration is available.
8.2 Anything contained herein to the contrary notwithstanding, the
Company shall not be able to issue any shares of Common Stock under the Plan
unless and until the Company is satisfied that such sale or issuance complies
with (i) all applicable requirements of NASDAQ (or the governing body of the
principal market in which the Common Stock is traded, if the Common Stock is
not then listed on that exchange), (ii) all applicable provisions of the
Securities Act and (iii) all other laws or regulations by which the Company is
bound or to which the Company is subject.
9. TERM OF THE PLAN
Unless the Plan has been sooner terminated pursuant to Paragraph 10
hereof, the Plan shall terminate on, and no Options shall be granted after the
tenth anniversary of the Effective Date. The provisions of the Plan, however,
shall continue thereafter to govern all Options theretofore granted, until the
exercise, expiration or cancellation of the Options.
10. AMENDMENT AND TERMINATION OF PLAN
The Board of Directors at any time may terminate or suspend the Plan
or amend it from time to time in such respects as it deems desirable; provided
that, without the further approval of the stockholders no amendment shall (i)
increase the maximum aggregate number of Options which may be granted under the
Plan, (ii) change the Option Grant Price provided for in Paragraph 7.1 hereof,
(iii) change the eligibility provisions of Paragraph 4 hereof or (iv) make any
other amendment which in the opinion of counsel to the Company must be approved
by the Company's stockholders in order to remain an exempted plan under Rule
16b-3, and provided further
<PAGE> 7
- 7 -
that, subject to the provisions of Paragraph 8 hereof, no termination of or
amendment to the Plan shall adversely affect the rights of any participant
without the consent of such participant, as the case may be. In addition, the
provisions of the Plan shall not be amended more than once every six months,
other than to comport with changes to the Internal Revenue Code of 1986, as
amended, the Employee Retirement Income Security Act of 1974, as amended, or
the rules thereunder.
(NS3\Dir-Opt.Pln)
<PAGE> 1
EXHIBIT 5
---------
KEATING, MUETHING & KLEKAMP
1800 PROVIDENT TOWER
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 579-6400
FACSIMILE (513) 579-6957
January 17, 1995
Direct Dial: (513) 579-6411
Citicasters, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Gentlemen:
We serve as your general counsel and are familiar with your Articles
of Incorporation, Bylaws and corporate proceedings generally. We have reviewed
the corporate records as to the establishment of your 1993 Stock Option Plan
which calls for the issuance of shares of Common Stock to employees of the
Company upon their exercise of options granted to them, and your 1994
Directors' Stock Option Plan which calls for the issuance of shares of Common
Stock to directors who are not employees of the Company upon their exercise of
options granted to them. Based solely upon such examination and
considerations, we are of the opinion:
1. That Citicasters, Inc. is a duly organized and validly
existing corporation under the laws of Florida; and
2. That the Corporation has taken all necessary and required
corporate actions in connection with the proposed issuance of up to 800,000
shares of Common Stock pursuant to the 1993 Stock Option Plan and 200,000
shares of Common Stock pursuant to the 1994 Directors' Stock Option Plan and
the Common Stock, when issued and delivered, will be validly issued, fully paid
and non-assessable shares of Common Stock of the Corporation free of any claim
of pre- emptive rights.
We hereby consent to be named in the Registration Statement and the
Prospectus part thereof as the attorneys who have passed
<PAGE> 2
Citicasters, Inc.
Page 8
January 17, 1995
upon legal matters in connection with the issuance of the aforesaid Common
Stock and to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
KEATING, MUETHING & KLEKAMP
BY: /s/Gary P. Kreider
------------------------
Gary P. Kreider
rjh
<PAGE> 1
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1993 Stock Option Plan and 1994
Directors' Stock Option Plan of Citicasters, Inc. of our report dated March 4,
1994, with respect to the consolidated financial statements and schedules of
Citicasters, Inc. (formerly Great American Communications Company) included in
Amendment No. 3 to its Annual Report (Form 10-K/A) for the year ended December
31, 1993, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cincinnati, Ohio
January 13, 1995
