<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 30, 1996
REGISTRATION NO. 333-01917
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
JACOR COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------------
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OHIO 31-0978313
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
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1300 PNC CENTER
201 EAST FIFTH STREET
CINCINNATI, OHIO 45202
(513) 621-1300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------------
R. CHRISTOPHER WEBER
JACOR COMMUNICATIONS, INC.
1300 PNC CENTER
201 EAST FIFTH STREET
CINCINNATI, OHIO 45202
(513) 621-1300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------------
COPIES OF COMMUNICATIONS TO:
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RICHARD G. SCHMALZL, ESQ. GREGG A. NOEL,
GRAYDON, HEAD & RITCHEY ESQ.
1900 FIFTH THIRD CENTER SKADDEN, ARPS,
CINCINNATI, OHIO 45202 SLATE, MEAGHER &
(513) 621-6464 FLOM
300 SOUTH GRAND
AVENUE, SUITE
3400
LOS ANGELES,
CALIFORNIA 90071
(213) 687-5000
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT
NO. 3 TO REGISTRATION STATEMENT NO. 333-01917 TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED IN THE CITY OF CINCINNATI, STATE OF OHIO
ON THIS 30TH DAY OF MAY 1996.
JACOR COMMUNICATIONS, INC.
BY: /S/ JON M. BERRY
-----------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT AND
TREASURER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
AMENDMENT NO. 3 TO REGISTRATION STATEMENT NO. 333-01917 HAS BEEN SIGNED ON MAY
30, 1996 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/S/ RANDY MICHAELS* /S/ R. CHRISTOPHER WEBER*
- ----------------------------------- -----------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT, CO-CHIEF OPERATING SENIOR VICE PRESIDENT, CHIEF
OFFICER AND DIRECTOR FINANCIAL OFFICER AND SECRETARY
/S/ ROBERT L. LAWRENCE* /S/ ROD F. DAMMEYER*
- ----------------------------------- -----------------------------------
Robert L. Lawrence Rod F. Dammeyer
CO-CHIEF OPERATING OFFICER AND DIRECTOR
DIRECTOR
/S/ SHELI Z. ROSENBERG* /S/ F. PHILIP HANDY*
- ----------------------------------- -----------------------------------
Sheli Z. Rosenberg F. Philip Handy
BOARD CHAIR AND DIRECTOR DIRECTOR
/S/ JOHN W. ALEXANDER* /s/ Marc Lasry*
- ----------------------------------- -----------------------------------
John W. Alexander Marc Lasry
DIRECTOR DIRECTOR
*By: Jon M. Berry as attorney-in-fact,
pursuant to a power of attorney
previously filed.
II-3
<PAGE>
INDEX TO EXHIBITS
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SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
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1.1 Form of Underwriting Agreement.
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2.1 Agreement and Plan of Merger dated February 12, 1996 (the "Merger *
Agreement") among Citicasters Inc., the Registrant and JCAC, Inc.
Incorporated by reference to Exhibit 2.1 to the Registrant's Current
Report on Form 8-K dated February 27, 1996.
2.2 Stockholders Agreement dated February 12, 1996 among the Registrant, JCAC, *
Inc., Great American Insurance Company, American Financial Corporation,
American Financial Enterprises, Inc., Carl H. Lindner, The Carl H.
Lindner Foundation and S. Craig Lindner. Incorporated by reference to
Exhibit 2.2 to the Registrant's Current Report on Form 8-K dated February
27, 1996.
2.3 Jacor Shareholders Agreement dated February 12, 1996 among Citicasters Inc. *
and Zell/ Chilmark Fund L.P. Incorporated by reference to Exhibit 2.3 to
the Registrant's Current Report on Form 8-K dated February 27, 1996.
2.4 Escrow Agreement among the Registrant, Citicasters Inc. and PNC Bank dated ***
March 13, 1996.
2.5 Irrevocable Letter of Credit, Banque Paribas, Chicago Branch dated March ***
13, 1996.
2.6 Letter of Credit and Reimbursement Agreement by and between the Registrant ***
and Banque Paribas dated March 13, 1996.
2.7 Form of Employment Continuation Agreement (executive officer form) between ***
Citicasters Inc. and [executive officer] (referred to as exhibit
6.6(c)(i) in Merger Agreement). Incorporated by reference to Exhibit 2.5
to the Registrant's Current Report on Form 8-K dated February 27, 1996.
2.8 Form of Employment Continuation Agreement (management form) between *
Citicasters Inc. and [manager] (referred to as exhibit 6.6(c)(ii) in
Merger Agreement). Incorporated by reference to Exhibit 2.6 to the
Registrant's Current Report on Form 8-K dated February 27, 1996.
2.9 Form of Warrant Agreement between the Registrant, and KeyCorp Shareholder *
Services, Inc., as warrant agent (referred to as exhibit 3.1 in Merger
Agreement). Incorporated by reference to Exhibit 2.7 to the Registrant's
Current Report on Form 8-K dated February 27, 1996.
2.10 Stock Purchase and Stock Warrant Redemption Agreement dated as of February *
20, 1996 among the Registrant, Prudential Venture Partners II, L.P.,
Northeast Ventures, II, John T. Lynch, Frank A. DeFrancesco, Thomas R.
Jiminez, William R. Arbenz, CIHC, Incorporated, Bankers Life Holding
Corporation and Noble Broadcast Group, Inc. ("Noble") (omitting exhibits
not deemed material or filed separately in executed form). [Prudential
and Northeast are sometimes referred to hereafter as the "Class A
Shareholders"; Lynch, DeFrancesco, Jiminez and Arbenz as the "Class B
Shareholders"; and CIHC and Bankers Life as the Warrant Sellers.]
Incorporated by reference to Exhibit 2.1 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
2.11 Investment Agreement dated as of February 20, 1996 among the Registrant, *
Noble and the Class B Shareholders (omitting exhibits not deemed
material). Incorporated by reference to Exhibit 2.2 to the Registrant's
Current Report on Form 8-K dated March 6, 1996, as amended.
2.12 Warrant to Purchase Class A Common Stock of Noble issued to the Registrant. *
Incorporated by reference to Exhibit 2.3 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
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2.13 Indemnification and Escrow Agreement dated as of February 20, 1996 among *
the Registrant, Noble, the Class A Shareholders, the Class B
Shareholders, the Warrant Sellers, The Fifth Third Bank and Conseco, Inc.
Incorporated by reference to Exhibit 2.4 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
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2.14 Stock Escrow and Security Agreement dated as of February 20, 1996 among the *
Registrant, Noble, the Class B Shareholders, Philip H. Banks, as trustee,
and The Fifth Third Bank, as escrow agent (omitting exhibits not deemed
material or filed separately in executed form). Incorporated by reference
to Exhibit 2.5 to the Registrant's Current Report on Form 8-K dated March
6, 1996, as amended.
2.15 Trust Agreement dated as of February 20, 1996 among the Class B *
Shareholders and their spouses, and Philip H. Banks, as trustee.
Incorporated by reference to Exhibit 2.6 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
2.16 Registration Rights Agreement dated as of February 20, 1996 between the *
Registrant and Noble. Incorporated by reference to Exhibit 2.7 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
2.17 Asset Purchase Agreement dated as of February 20, 1996 among Chesapeake *
Securities, Inc. (a Registrant subsidiary), Noble Broadcast of San Diego,
Inc., Sports Radio, Inc. and Noble Broadcast Center, Inc. Incorporated by
reference to Exhibit 2.7 to the Registrant's Current Report on Form 8-K
dated March 6, 1996, as amended.
2.18 Jacor--CMM Limited Partnership Agreement of Limited Partnership dated *
January 1, 1994, by and between Jacor Cable, Inc., Up Your Ratings, Inc.
and the Registrant. Incorporated by reference to Exhibit 2.2 of the
Registrant's Annual Report on Form 10-K dated March 30, 1995.
2.19 Amendment No. 1 to Jacor--CMM Limited Partnership Agreement of Limited *
Partnership dated July 22, 1994, by and between Jacor Cable, Inc., Up
Your Ratings, Inc. and the Registrant to amend the Jacor--CMM Limited
Partnership Agreement of Limited Partnership dated January 1, 1994.
Incorporated by reference to Exhibit 2.3 of the Registrant's Annual
Report on Form 10-K dated March 30, 1995.
2.20 Amendment No. 2 to Jacor--CMM Limited Partnership Agreement of Limited *
Partnership with an effective date as of January 1, 1994, by and between
Jacor Cable, Inc., Up Your Ratings, Inc. and the Registrant to amend the
Jacor--CMM Limited Partnership Agreement of Limited Partnership dated
January 1, 1994. Incorporated by reference to Exhibit 2.4 of the
Registrant's Annual Report on Form 10-K dated March 30, 1995.
4.1 Specimen Common Stock Certificate. Incorporated by reference to Exhibit 2.1 *
to the Registrant's Form 8-A, dated January 12, 1993.
4.2 Credit Agreement dated as of February 20, 1996, among the Registrant, the *
Banks named therein, Banque Paribas, as Agent, and The First National
Bank of Boston and Bank of America Illinois, as Co-Agents (omitting
exhibits not deemed material or filed separately in executed form).
Incorporated by reference to Exhibit 4.1 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
4.3 Revolving A Note in favor of Banque Paribas by the Registrant dated as of *
February 20, 1996. (1) Incorporated by reference to Exhibit 4.2 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
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4.4 Revolving B Note in favor of Banque Paribas by the Registrant dated as of *
February 20, 1996. (1) Incorporated by reference to Exhibit 4.3 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
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4.5 Security Agreement dated as of February 20, 1996 among the Registrant, *
Banque Paribas, as Agent, for itself, the Co-Agents and the Banks.
Incorporated by reference to Exhibit 4.4 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
4.6 Pledge Agreement dated as of February 20, 1996 among the Registrant, Banque *
Paribas, as Agent, for itself, the Co-Agents and the Banks. Incorporated
by reference to Exhibit 4.5 to the Registrant's Current Report on Form
8-K dated March 6, 1996, as amended.
4.7 Trademark Security Agreement dated as of February 20, 1996 among the *
Registrant, Banque Paribas, as Agent, for itself, the Co-Agents and the
Banks. Incorporated by reference to Exhibit 4.6 to the Registrant's
Current Report on Form 8-K dated March 6, 1996, as amended.
4.8 Subsidiary Guaranty dated as of February 20, 1996, by various subsidiaries *
of the Registrant in favor of Banque Paribas, as Agent, for itself, the
Co-Agents and the Banks. (2) Incorporated by reference to Exhibit 4.7 to
the Registrant's Current Report on Form 8-K dated March 6, 1996, as
amended.
4.9 Subsidiary Security Agreement dated as of February 20, 1996, by various *
Company subsidiaries in favor of Banque Paribas, as Agent, for itself,
the Co-Agents and the Banks (omitting exhibits not deemed material). (2)
Incorporated by reference to Exhibit 4.8 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
4.10 Primary Pledge Agreement dated as of February 20, 1996 among Chesapeake *
Securities, Inc. (a subsidiary of the Registrant), Banque Paribas as
Agent, for itself, the Co-Agents and the Banks. (3) Incorporated by
reference to Exhibit 4.9 to the Registrant's Current Report on Form 8-K
dated March 6, 1996, as amended.
4.11 Secondary Pledge Agreement dated as of February 20, 1996 between the *
Registrant and Chesapeake Securities, Inc. (a subsidiary of the
Registrant). (4) Incorporated by reference to Exhibit 4.10 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.12 Subsidiary Trademark Agreement dated as of February 20, 1996 among Jacor *
Broadcasting of Tampa Bay, Inc., Jacor Broadcasting of Atlanta, Inc.,
Jacor Broadcasting Corporation and Jacor Broadcasting of Florida, Inc. in
favor of Banque Paribas as Agent, for itself, the Co-Agents and the
Banks. Incorporated by reference to Exhibit 4.11 to the Registrant's
Current Report on Form 8-K dated March 6, 1996, as amended.
4.13 Deed to Secure Debt and Security Agreement, dated as of February 20, 1996, *
by and between Jacor Broadcasting of Atlanta, Inc. and Banque Paribas, as
Agent. Incorporated by reference to Exhibit 4.12 to the Registrant's
Current Report on Form 8-K dated March 6, 1996, as amended.
4.14 Deed of Trust and Security Agreement, dated as of February 20, 1996, *
between Jacor Broadcasting of Colorado, Inc. and the Public Trustee in
the County of Weld and the State of Colorado. (6) Incorporated by
reference to Exhibit 4.13 to the Registrant's Current Report on Form 8-K
dated March 6, 1996, as amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- --------------------------------------------------------------------------- ---------
4.15 Open-End Mortgage, Assignment of Rents and Leases and Security Agreement, *
dated February 20, 1996, by and between Jacor Broadcasting Corporation
and Banque Paribas, as Agent. (7) Incorporated by reference to Exhibit
4.14 to the Registrant's Current Report on Form 8-K dated March 6, 1996,
as amended.
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4.16 Open-End Mortgage, Assignment of Rents and Leases and Security Agreement *
dated as of February 20, 1996, by Jacor Broadcasting of Tampa Bay, Inc.
in favor of Banque Paribas, as Agent. (8) Incorporated by reference to
Exhibit 4.15 to the Registrant's Current Report on Form 8-K dated March
6, 1996, as amended.
4.17 Deed of Trust and Security Agreement, Assignment of Leases, Rents and *
Profits, Financing Statement and Fixture Filing made by Chesapeake
Securities, Inc. for the Benefit of Banque Paribas as Agent dated as of
February 20, 1996. Incorporated by reference to Exhibit 4.16 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.18 Second Consolidated Amended and Restated Intercompany Demand Note issued to *
the Company by various subsidiaries of the Registrant dated as of
February 20, 1996. (5) Incorporated by reference to Exhibit 4.17 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.19 Second Amended and Restated Intercompany Security Agreement and Financing *
Statement dated as of February 20, 1996 by various subsidiaries of the
Registrant in favor of the Company (omitting exhibits not deemed
material). (2) Incorporated by reference to Exhibit 4.18 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.20(+) Restricted Stock Agreement dated as of June 23, 1993 by and between the *
Registrant and Rod F. Dammeyer. (9) Incorporated by reference to Exhibit
4.2 to the Registrant's Quarterly Report on Form 10-Q dated August 13,
1993.
4.21(+) Stock Option Agreement dated as of June 23, 1993 between the Registrant and *
Rod F. Dammeyer covering 10,000 shares of the Registrant's common stock.
(10) Incorporated by reference to Exhibit 4.3 to the Registrant's
Quarterly Report on Form 10-Q dated August 13, 1993.
4.22(+) Stock Option Agreement dated as of December 15, 1994 between the Registrant *
and Rod F. Dammeyer covering 5,000 shares of the Registrant's common
stock. (11) Incorporated by reference to Exhibit 4.23 to the Registrant's
Quarterly Report on Form 10-Q dated August 13, 1993.
5.1 Form of Opinion of Graydon, Head & Ritchey.
10.1 Credit Agreement dated as of February 20, 1996 among Broadcast Finance,
Inc. (a Regis-trant subsidiary), Noble Broadcast Group, Inc. and Noble
Broadcast Holdings, Inc. (omitting exhibits not deemed material or filed
separately in executed form). Incorporated by reference to Exhibit 10.1
to the Registrant's Current Report on Form 8-K dated March 6, 1996, as
amended.
10.2 Subsidiary Guaranty dated as of February 20, 1996 in favor of Broadcast *
Finance, Inc. by Noble Broadcast Center, Inc., Noble Broadcast of
Colorado, Inc., Noble Broadcast of St. Louis, Inc., Noble Broadcast of
Toledo, Inc., Nova Marketing Group, Inc., Noble Broadcast Licenses, Inc.,
Noble Broadcast of San Diego, Inc., Sports Radio, Inc. and Sports Radio
Broadcasting, Inc. Incorporated by reference to Exhibit 10.2 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- --------------------------------------------------------------------------- ---------
10.3 Term Note in the amount of $40,000,000 by Noble Broadcast Holdings, Inc. in *
favor of Broadcast Finance, Inc. dated as of February 20, 1996.
Incorporated by reference to Exhibit 10.3 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
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10.4 Revolving Note in the amount of $1,000,000 by Noble Broadcast Holdings, *
Inc. in favor of Broadcast Finance, Inc. dated as of February 20, 1996.
Incorporated by reference to Exhibit 10.4 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
10.5(+) Jacor Communications, Inc. 1993 Stock Option Plan. Incorporated by *
reference to Exhibit 99 to the Quarterly Report on Form 10-Q dated August
13, 1993.
10.6(+) Jacor Communications, Inc. 1995 Employee Stock Purchase Plan. Incorporated *
by reference to Exhibit 4.01 to the Registration Statement on Form S-8,
filed on November 9, 1994.
23.1 Consent of Coopers & Lybrand L.L.P. ***
23.2 Consent of Ernst & Young LLP. ***
23.3 Consent of Price Waterhouse LLP. ***
23.4 Consent of Graydon, Head & Ritchey (included in opinion of counsel filed as
Exhibit 5.1).
24 Powers of Attorney of directors and officers signing this Registration ***
Statement.
27.1 Financial Data Schedule of the Registrant. ***
</TABLE>
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(*) Incorporated by reference.
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(**) To be filed by Amendment.
(***) Previously filed.
(+) Management Contracts and Compensatory Arrangements.
(1) Identical Notes were issued by the Company in favor of the following Banks:
The First National Bank of Boston
Bank of America Illinois
Bank of Montreal
The Bank of New York
The Bank of Nova Scotia
CIBC, Inc.
First Bank
Society National Bank
Union Bank
The aggregate principal amount of Revolving A Notes is $190 million. The aggregate principal amount of the
Revolving B Notes is $110 million.
(2) Executed by the following subsidiaries of the Registrant:
Jacor Broadcasting of Florida, Inc.
Jacor Broadcasting of Atlanta, Inc.
Jacor Broadcasting of Knoxville, Inc.
Jacor Broadcasting of Colorado, Inc.
Jacor Broadcasting of Tampa Bay, Inc.
Jacor Broadcasting of St. Louis, Inc.
Jacor Cable, Inc.
Georgia Network Equipment, Inc.
Jacor Broadcasting Corporation
Broadcast Finance, Inc.
Chesapeake Securities, Inc.
OIA Broadcasting L.L.C.
(3) An identical Primary Pledge Agreement was executed by Jacor Broadcasting of Atlanta, Inc.
(4) An identical Secondary Pledge Agreement was executed by Jacor Broadcasting of Atlanta, Inc.
(5) Such notes were issued by the subsidiaries of the Registrant identified in (2) above.
(6) A substantially similar document was entered into by Jacor Broadcasting of Colorado, Inc. relating to real
property located
</TABLE>
<PAGE>
<TABLE>
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in Douglas County, Colorado.
(7) A substantially similar document was entered into by Jacor Broadcasting Corporation relating to real property
located in Hamilton County, Ohio.
(8) Substantially similar documents were entered into by Jacor of Tampa Bay, Inc. relating to real property
located in Manatee County, Florida and by Jacor Broadcasting of Florida relating to real property located in
Duval County, Florida and St. Johns County, Florida.
(9) Substantially identical documents were entered into with John W. Alexander, F. Philip Handy and Marc Lasry
covering 20,000, 30,000 and 10,000 shares of common stock, respectively.
(10) Identical documents were entered into with John W. Alexander, F. Philip Handy and Marc Lasry.
(11) Identical documents were entered into with John W. Alexander, F. Philip Handy, Marc Lasry and Sheli Z.
Rosenberg.
</TABLE>
<PAGE>
11,250,000 Shares
JACOR COMMUNICATIONS, INC.
Common Stock
(No Par Value)
UNDERWRITING AGREEMENT
[ ], 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SMITH BARNEY INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Ladies and Gentlemen:
Jacor Communications, Inc., an Ohio corporation (the "Company"),
confirms its agreement with the several underwriters listed in Schedule I hereto
(the "Underwriters"), for whom Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ"), Alex. Brown & Sons Incorporated, CS First Boston
Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Smith Barney
Inc. (collectively, the "Representatives") have been duly authorized to act as
representatives, as follows:
1. THE SHARES. Subject to the terms and conditions herein set forth,
the Company proposes to sell to the Underwriters an aggregate of 11,250,000
shares (the "Firm Shares") of common stock, no par value per share, of the
Company (the "Common Stock"). The Company also proposes to sell to the several
Underwriters an aggregate of not more than 1,687,500 additional shares of
<PAGE>
Common Stock (the "Additional Shares"), if requested by the Underwriters as
provided in Section 3 hereof. The Firm Shares and the Additional Shares are
herein collectively called the "Shares."
The Shares are being issued and sold in connection with (i) the merger
(the "Merger") of Citicasters Inc., a Florida corporation ("Citicasters"), with
and into a wholly owned subsidiary of the Company, and (ii) the acquisition of
all of the equity interests of Noble Broadcasting Group, Inc., a Delaware
corporation ("Noble"), by the Company (the "Noble Acquisition" and collectively,
with the Merger, the "Pending Acquisitions").
The Merger is being effected pursuant to an Agreement and Plan of
Merger, dated as of February 12, 1996 (the "Merger Agreement"), by and among the
Company, JCAC, Inc., a Florida corporation and a wholly owned subsidiary of the
Company (the "Merger Sub"), and Citicasters. Pursuant to the Merger Agreement,
the Company will acquire all of the issued and outstanding capital stock of
Citicasters.
The Noble Acquisition is being effected pursuant to the Stock Purchase
and Stock Warrant Redemption Agreement dated as of February 20, 1996 by and
among the Company, Prudential Venture Partners II, L.P., Northeast Ventures, II,
John T. Lynch, Frank A. DeFrancesco, Thomas R. Jiminez, William R. Arbenz, CIHC,
Incorporated, Bankers Life Holding Corporation and Noble (the "Noble Acquisition
Agreement"). Pursuant to the Noble Acquisition Agreement, the Company will
acquire all of the issued and outstanding equity interests of Noble.
Prior to or concurrently with the issuance and sale of the Shares, the
Company will (i) enter into a new credit facility with availability of
$600,000,000 with Chemical Bank, as administrative agent, Banque Paribas, as
documentation agent, Bank of America, Illinois, as syndication agent and certain
lenders named therein (together with the documents and agreements contemplated
thereby, the "New Credit Facility"); (ii) issue and sell liquid yield option
notes in the aggregate principal amount of maturity of $202.0 million (excluding
$33.7 million aggregate principal amount subject to an over-allotment option)
due _________, 2011 (the "LYONs"); and (iii) issue and sell $100.0 million
aggregate principal
2
<PAGE>
amount of ___% Senior Subordinated Notes due __________, 2006 (the "Sub Notes").
This Underwriting Agreement, the Merger Agreement and all related agreements and
documents, the Noble Acquisition Agreement and all related agreements and
documents, the New Credit Facility and all related agreements and documents, and
all documents and agreements related to each of the LYONs offering and the Sub
Notes offering are collectively referred to herein as the "Transaction
Documents."
2. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 (No. 333-01917), including a
preliminary prospectus, subject to completion, relating to the Shares. The
registration statement, as amended at the time it becomes effective or, if a
post-effective amendment is filed with respect thereto, as amended by such post-
effective amendment at the time of its effectiveness, including in each case,
all documents incorporated or deemed incorporated by reference therein, if any,
all financial statements and exhibits, and the information, if any, contained in
a prospectus or term sheet subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be a part of the registration statement
at the time of its effectiveness pursuant to Rule 430A or Rule 434 under the Act
(as applicable), and any additional registration statement relating to the
issuance of additional shares of Common Stock filed pursuant to Rule 462(b)
under the Act, is hereinafter referred to as the "Registration Statement"; and
the prospectus, constituting a part of the Registration Statement at the time it
became effective, or such revised prospectus as shall be provided to the
Underwriters for use in connection with the offering of the Shares that differs
from the prospectus on file with the Commission at the time the Registration
Statement became effective including, in each case, all documents incorporated
or deemed incorporated by reference therein, if any, and including any
preliminary prospectus subject to completion and any term sheet meeting the
requirements of Rule 434(c), filed pursuant to Rule 424(b), in the form used to
confirm sales of the Shares, whether or not filed with
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the Commission pursuant to Rule 424(b) under the Act, is hereinafter referred to
as the "Prospectus."
3. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a price per share of $[ ] (the "Purchase
Price") the aggregate number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Company
agrees to issue and sell to the Underwriters up to 1,687,500 Additional Shares,
(ii) the Underwriters shall have a right to purchase, severally and not jointly,
from time to time, up to an aggregate of 1,687,500 Additional Shares at the
Purchase Price. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as the Representatives may determine) which bears the same proportion to
the total number of Additional Shares to be purchased as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto
bears to the total number of Firm Shares.
The Company hereby agrees, and the Company shall, concurrently with
the execution of this Agreement, deliver an agreement executed by (i) each of
the directors and officers of the Company and (ii) Zell/Chilmark Fund, L.P.,
pursuant to which each such person will agree, not to, directly or indirectly,
offer, sell, contract to sell, grant any option to purchase or otherwise dispose
of (whether directly or synthetically), without the prior written consent of
DLJ, any shares of Common Stock, or any securities convertible into or
exercisable or exchangeable for, or warrants, options or rights to purchase or
acquire, Common Stock or enter into any agreement to do any of the foregoing
(whether directly or
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synthetically), for a period of 180 days after the date of the Prospectus,
except (A) pursuant to this Agreement, (B) pursuant to stock options or stock
option plans referred to in the Prospectus, (C) pursuant to warrants referred to
in the Prospectus which were issued in connection with the Merger or (D)
pursuant to warrants issued in connection with a recapitalization of the Company
in 1993 which are described in the Prospectus as the "1993 Warrants".
4. DELIVERY AND PAYMENT. Delivery to you of and payment for the Firm
Shares shall be made at 9:00 A.M., New York City time, on the third or fourth
business day, unless otherwise permitted by the Commission pursuant to Rule
15c6-1 under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act"),
(such time and date being referred to as the "Closing Date") following the date
of the initial public offering of the Firm Shares as advised by DLJ to the
Company, at such place as DLJ shall reasonably designate. The Closing Date and
the location of delivery of the Firm Shares may be varied by agreement between
DLJ and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as DLJ shall
designate, at 9:00 A.M., New York City time, on such date or dates
(individually, an "Option Closing Date"), which may be the same as the Closing
Date but shall in no event be earlier than the Closing Date, as shall be
specified in a written notice from DLJ to the Company of the Underwriters'
determination to purchase a number, specified in said notice, of Additional
Shares. Any such notice may be given at any time not later than 30 days after
the date of this Agreement. Any Option Closing Date and the location of
delivery of and payment for the Additional Shares may be varied by agreement
among DLJ and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as DLJ shall request in writing not later than two
full business days prior to the Closing Date or the applicable Option Closing
Date, as the case may be, and shall be made available to you at the offices of
DLJ (or such other place as shall be acceptable to you) for inspection not
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later than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or the applicable Option Closing Date, as the case may be,
with any transfer taxes payable upon initial issuance thereof duly paid by the
Company, for the respective accounts of the Underwriters against payment of the
Purchase Price by wire transfer payable in same day funds, to the order of the
Company.
5. AGREEMENTS OF THE COMPANY. The Company agrees with each of you
that:
(a) It will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement
or, if necessary pursuant to Rule 430A under the Act, a post-effective
amendment to the Registration Statement, in each case as soon as
practicable after the execution and delivery of this Agreement, and will
use its best efforts to cause the Registration Statement or such post-
effective amendment to become effective at the earliest possible time. The
Company will comply fully and in a timely manner with the applicable
provisions of Rule 424 and Rule 430A, and if applicable, Rule 462, under
the Act.
(b) It will advise you promptly and, if requested by any of you,
confirm such advice in writing, (i) when the Registration Statement has
become effective, if and when the Prospectus is sent for filing pursuant to
Rule 424 under the Act and when any post-effective amendment to the
Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission or any state securities commission or
regulatory authority that relate to the Registration Statement or requests
by the Commission or any state securities commission or regulatory
authority for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purpose
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by the Commission or any state securities commission or other regulatory
authority, and (iv) of the happening of any event during such period as in
your reasonable judgment you are required to deliver a prospectus in
connection with sales of the Shares by you which makes any statement of a
material fact made in the Registration Statement untrue or which requires
the making of any additions to or changes in the Registration Statement (as
amended or supplemented from time to time) in order to make the statements
therein not misleading or that makes any statement of a material fact made
in the Prospectus (as amended or supplemented from time to time) untrue or
which requires the making of any additions to or changes in the Prospectus
(as amended or supplemented from time to time) in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company shall use its best efforts to prevent
the issuance of any stop order or order suspending the qualification or
exemption of the Shares under any state securities or Blue Sky laws, and,
if at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption of the Shares under any state securities or
Blue Sky laws, the Company shall use every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
(c) It will furnish to you without charge two (2) signed copies (plus
one (1) additional signed copy to your legal counsel) of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits filed therewith, and will furnish to you such number
of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(d) It will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
make any amendment or supplement to the Prospectus, of which you shall not
previously have been advised and
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<PAGE>
provided a copy within two business days prior to the filing thereof (or
such reasonable amount of time as is necessitated by the exigency of such
amendment or supplement) or to which you shall reasonably object; and it
will prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and will use its best efforts to cause
any amendment to the Registration Statement to become effective as promptly
as possible.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period in your reasonable judgment as
a prospectus is required to be delivered in connection with sales of the
Shares by you, it will furnish to each Underwriter and dealer without
charge as many copies of the Prospectus (and of any amendment or supplement
to the Prospectus) as such Underwriters and dealers may reasonably request.
The Company consents to the use of the Prospectus and any amendment or
supplement thereto by any Underwriter or any dealer, both in connection
with the offering or sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act or the Exchange Act to
be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the Shares by
you any event shall occur as a result of which it becomes necessary to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing as of the date the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, it will promptly prepare
and file with the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances existing as of
the date the Prospectus is so delivered, be misleading, and will
8
<PAGE>
comply with applicable law, and will furnish to each Underwriter and dealer
without charge such number of copies thereof as such Underwriters and
dealers may reasonably request.
(g) Prior to any public offering of the Shares, it will cooperate
with you and your counsel in connection with the registration or
qualification of the Shares for offer and sale by you under the state
securities or Blue Sky laws of such jurisdictions as you may request
(provided, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to take
any action that would subject it to general consent to service of process
in any jurisdiction in which it is not now so subject). The Company will
continue such qualification in effect so long as required by law for
distribution of the Shares.
(h) It will make generally available to its security holders as soon
as reasonably practicable a consolidated earning statement covering a
period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder, and to
advise you in writing when such statement has been so made available.
(i) It will timely complete all required filings and otherwise fully
comply in a timely manner with all provisions of the Exchange Act.
(j) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission, and (ii) from
time to time such other information concerning the Company as you may
request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, it will pay and be responsible
for all costs, expenses, fees and taxes in connection with or incident to
(i) the printing, processing, filing,
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distribution and delivery under the Act or the Exchange Act of the
Registration Statement, each preliminary prospectus, the Prospectus and all
amendments or supplements thereto, (ii) the printing, processing,
execution, distribution and delivery of this Agreement, any memoranda
describing state securities or Blue Sky laws and all other agreements,
memoranda, correspondence and other documents printed, distributed and
delivered in connection with the offering of the Shares, (iii) the
registration with the Commission and the issuance and delivery of the
Shares, (iv) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the jurisdictions referred to
in paragraph (g) above (including, in each case, the fees and disbursements
of counsel relating to such registration or qualification and memoranda
relating thereto and any filing fees in connection therewith), (v)
furnishing such copies of the Registration Statement, Prospectus and
preliminary prospectus, and all amendments and supplements to any of them,
as may be reasonably requested by you, (vi) filing, registration and
clearance with the NASD in connection with the offering of the Shares
(including any filing fees in connection therewith and the fees and
disbursements of counsel relating thereto), (vii) the listing of the Shares
on the Nasdaq Stock Market's National Market (the "NASDAQ National
Market"), (viii) the rating of the LYONs and the Sub Notes by investment
rating agencies, (ix) any "qualified independent underwriter" as required
by Schedule E of the Bylaws of the NASD (including fees and disbursements
of counsel for such qualified independent underwriter), (x) the printing,
processing, execution, distribution and delivery of the Transaction
Documents and all other agreements, memoranda, correspondence and other
documents, printed, distributed and delivered in connection with the
Transaction Documents and (xi) the performance by the Company of its other
obligations under this Agreement, the cost of its personnel and other
internal costs, the cost of printing and engraving the certificates
representing the Shares, and all expenses and taxes incident to the sale
and delivery of the Shares to you.
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(l) It will use the proceeds from the sale of the Shares in the
manner described in the Prospectus under the caption "Use of Proceeds."
(m) It will cause the Shares to be quoted on the Nasdaq National
Market and will use its reasonable best efforts to maintain such quotation
while any of the Shares are outstanding.
(n) It will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or
after the Closing Date and to satisfy all conditions precedent on its part
to the delivery of the Securities.
(o) It will timely complete all required filings and otherwise comply
fully in a timely manner with all provisions of the Exchange Act, and will
file all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14(a) or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offer or sale of the Shares.
(p) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, except as described in the
Prospectus with respect to the Merger or the Noble Acquisition, there will
be no transactions entered into by the Company or any of its subsidiaries
(each a "Subsidiary" and, collectively, the "Subsidiaries"), Citicasters or
Noble which are material with respect to the Company or any of the
Subsidiaries, Citicasters or Noble, respectively, taken individually or as
a whole, and there will be no dividend or distribution of any kind
declared, paid or made by the Company on any class of capital stock or
other equity interests.
6. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each of you that:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus (if
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<PAGE>
different) and at the Closing Date, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date of
any such supplements or amendments and at the Closing Date contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements in or omissions from the Registration Statement or the
Prospectus (or any supplement or amendment to them) made in reliance upon
and in conformity with information relating to any Underwriter furnished to
the Company in writing by or on behalf of any Underwriter through DLJ
expressly for use therein. The Company acknowledges for all purposes under
this Agreement that the statements with respect to price and underwriting
discount and the last paragraph all as set forth on the cover page and in
paragraph four and in the last sentence of the fifth paragraph under the
caption "Underwriting" in the Prospectus (or any amendment or supplement)
constitute the only written information furnished to the Company by DLJ
expressly for use in the Registration Statement or the Prospectus (or any
amendment or supplement to them) and that the Underwriters shall not be
deemed to have provided any other information (and therefore are not
responsible for any such statement or omission).
(b) Any term sheet and prospectus subject to completion provided by
the Company to the Underwriters for use in connection with the offering and
sale of the Shares pursuant to Rule 434 under the Act together are not
materially different from the Prospectus included in the Registration
Statement.
(c) Each preliminary prospectus and the Prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
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thereto, or filed pursuant to Rule 424 under the Act, and each Registration
Statement filed pursuant to Rule 462(b) under the Act, if any, complied
when so filed in all material respects with the Act.
(d) The Company and each of its Subsidiaries, Citicasters and Noble
have been duly organized, is validly existing as a corporation in good
standing under the laws of its jurisdiction of organization and has the
requisite corporate power and authority to carry on its business as it is
currently being conducted, to own, lease and operate its properties and, as
applicable, to authorize the offering of the Shares, to execute, deliver
and perform this Agreement, and to issue, sell and deliver the Shares, and
to execute, deliver and perform the Transaction Documents, as applicable,
and each is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction where the operation,
ownership or leasing of property or the conduct of its business requires
such qualification, except where the failure to be so qualified could not,
singly or in the aggregate, reasonably be expected to have a material
adverse effect on the respective properties, business, results of
operations, condition (financial or otherwise), affairs or prospects of
each of (i) the Company and the Subsidiaries taken as a whole; (ii)
Citicasters and its subsidiaries (collectively referred to herein as
"Citicasters") taken as a whole; and (iii) Noble and its subsidiaries
(collectively referred to herein as "Noble") taken as a whole; individually
(a "Material Adverse Effect").
(e) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each Subsidiary have been duly and validly
authorized and issued, and all of the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or through
Subsidiaries, by the Company and, upon completion of the transactions
contemplated by the Transaction Documents, all of the shares of capital
stock of, or other ownership interests in, each of Citicasters and Noble,
will be owned, directly or through Subsidiaries, by the Company. All such
shares of capital stock are fully paid and nonassessable, and are
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owned free and clear of any security interest, mortgage, pledge, claim,
lien or encumbrance (each, a "Lien"), except for Liens arising under the
New Credit Facility. There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or
Liens related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other ownership interest in,
any Subsidiary.
(f) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"; all the
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and not subject to any
preemptive or similar rights; the Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
fully paid and nonassessable; the capital stock of the Company, including
the Common Stock, conforms in all material respects to all statements
relating thereto in the Prospectus and the Registration Statement; and the
issuance of the Shares by the Company will not be subject to preemptive or
other similar rights.
(g) None of the Company and any of the Subsidiaries, Citicasters or
Noble, are in violation of their respective charters or bylaws or in
default in the performance of any bond, debenture, note or any other
evidence of indebtedness or any indenture, mortgage, deed of trust or other
contract, lease or other instrument to which the Company or any of the
Subsidiaries, Citicasters or Noble is a party or by which any of them is
bound, or to which any of the property or assets of the Company or any of
the Subsidiaries, Citicasters or Noble is subject, except, in the case of
Citicasters or Noble, as could not have a Material Adverse Effect.
(h) This Agreement and the New Credit Facility have been duly
authorized and validly executed and delivered by the Company and constitute
a valid and legally binding agreement of the Company, enforce-
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<PAGE>
able against the Company in accordance with its terms (assuming, in the
case of this Agreement, the due execution and delivery hereof by you).
(i) The execution and delivery of this Agreement by the Company, the
issuance and sale of the Shares, the performance of this Agreement and the
consummation of the transactions contemplated by this Agreement and the
execution and delivery of the Transaction Documents by each of the Company,
Citicasters and Noble, as applicable, and the consummation of the
transactions contemplated by the Transaction Documents will not (1)
conflict with or result in a breach or violation of any of the respective
charters or bylaws of the Company or any of the Subsidiaries, Citicasters
or Noble, or any of the terms or provisions of, except, in the case of
Citicasters or Noble, as could not have a Material Adverse Effect or (2)
constitute a default or cause an acceleration of any obligation under or
result in the imposition or creation of (or the obligation to create or
impose) a Lien (except for Liens pursuant to the New Credit Facility) with
respect to, any bond, note, debenture or other evidence of indebtedness or
any indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of the Subsidiaries, Citicasters or Noble, is a
party or by which it or any of them is bound, or to which any properties of
the Company or any of the Subsidiaries, Citicasters or Noble, is or may be
subject, except, in the case of Citicasters or Noble, as could not have a
Material Adverse Effect, or (3) contravene any order of any court or
governmental agency or body having jurisdiction over the Company or any of
the Subsidiaries, Citicasters or Noble, or any of their properties, or
violate or conflict with any statute, rule or regulation or administrative
or court decree applicable to the Company or any of the Subsidiaries,
Citicasters or Noble, or any of their respective properties, except, in the
case of Citicasters or Noble, as could not have a Material Adverse Effect.
(j) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries,
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Citicasters or Noble, or any of their respective properties, which is
required to be disclosed in the Registration Statement or the Prospectus,
or which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect or which could reasonably be
expected to materially and adversely affect the consummation of this
Agreement or the transactions contemplated hereby or the consummation of
the Transaction Documents or the transactions contemplated thereby, and to
the best of the Company's knowledge, no such proceedings are contemplated
or threatened. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement is not so described or filed.
(k) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Shares, suspends the effectiveness
of the Registration Statement, prevents or suspends the use of any
preliminary prospectus or suspends the sale of the Shares in any
jurisdiction referred to in Section 4(g) hereof; no injunction, restraining
order or order of any nature by a Federal or state court of competent
jurisdiction has been issued with respect to the Company or any of the
Subsidiaries which would prevent or suspend the issuance or sale of the
Shares, the effectiveness of the Registration Statement, or the use of any
preliminary prospectus in any jurisdiction referred to in Section 4(g)
hereof; no action, suit or proceeding is pending against or, to the best of
the Company's knowledge, threatened against or affecting the Company or any
of the Subsidiaries before any court or arbitrator or any governmental
body, agency or official, domestic or foreign, which, if adversely
determined, would materially interfere with or adversely affect the
issuance of the Shares or in any manner draw into question the validity of
the Transaction Documents; and every request of the Commission or any
securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) has been complied with in all material respects.
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(l) (i) None of the Company nor any of the Subsidiaries, Citicasters
or Noble are in violation of any Federal, state or local laws and
regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), including, without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of toxic or hazardous substances, materials
or wastes, or petroleum and petroleum products ("Materials of Environmental
Concern"), or otherwise relating to the protection of human health and
safety, or the storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, "Environmental Laws"), which violation
includes, but is not limited to, noncompliance with any permits or other
governmental authorizations, except to the extent that any such violation
could not have a Material Adverse Effect or otherwise require disclosure in
the Prospectus; and (ii) to the best knowledge of the Company and any of
the Subsidiaries, Citicasters or Noble, after due inquiry, (A) none of the
Company and any of the Subsidiaries, Citicasters or Noble, have received
any communication (written or oral), whether from a governmental authority
or otherwise, alleging any such violation or noncompliance, and there are
no circumstances, either past, present or that are reasonably foreseeable,
that may lead to such violation in the future, (B) there is no pending or
threatened claim, action, investigation or notice (written or oral) by any
person or entity alleging potential liability for investigatory, cleanup,
or governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned or operated by the Company and any of the
Subsidiaries, Citicasters or Noble, now or in the past, or (y)
circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law (collectively, "Environmental Claims") that could
have a Material Adverse Effect or otherwise require disclosure in the
Prospectus, and (C) there are no past or present actions, activities,
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circumstances, conditions, events or incidents, that could form the basis
of any Environmental Claim against the Company and any of the Subsidiaries,
Citicasters or Noble or against any person or entity whose liability for
any Environmental Claim the Company and any of the Subsidiaries,
Citicasters or Noble has retained or assumed either contractually or by
operation of law. In the ordinary course of its business, each of the
Company and the Subsidiaries, Citicasters and Noble conducts a periodic
review of the effect of Environmental Laws on the business, operations and
properties of the in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties); on the basis of such review, the Company and
the Subsidiaries, Citicasters and Noble have reasonably concluded that such
associated costs and liabilities could not have a Material Adverse Effect.
(m) None of the Company nor any of the Subsidiaries, Citicasters or
Noble has violated any Federal, state or local law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable wage or hour laws, nor any provisions of the Employee Retirement
Income Security Act of 1974 ("ERISA") or the rules and regulations
promulgated thereunder, nor has the Company or any of the Subsidiaries,
Citicasters or Noble engaged in any unfair labor practice, which in each
case described in this sentence could reasonably be expected to result,
singly or in the aggregate, in a Material Adverse Effect. There is (i) no
significant unfair labor practice complaint pending against the Company or
any of the Subsidiaries, Citicasters or Noble or, to the best knowledge of
the Company, threatened against any of them, before the National Labor
Relations Board or any state or local labor relations board, and no
significant grievance or significant arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against the
Company or any of the Subsidiaries,
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Citicasters or Noble or, to the best knowledge of the Company, threatened
against any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage pending against the Company or any of its Subsidiaries,
Citicasters or Noble or, to the best knowledge of the Company, threatened
against the Company or any of the Subsidiaries, Citicasters or Noble and
(iii) to the best knowledge of the Company, no union representation
question existing with respect to the employees of the Company or any of
the Subsidiaries, Citicasters or Noble and, to the best knowledge of the
Company, no union organizing activities are taking place, except (with
respect to any matter specified in clause (i), (ii) or (iii) above, singly
or in the aggregate) such as could not have a Material Adverse Effect.
(n) The Company and each of its Subsidiaries, Citicasters and Noble
have good and marketable title, free and clear of all Liens, to all
property and assets described in the Registration Statement as being owned
by it, except for (i) Liens pursuant to the New Credit Facility, (ii) Liens
on general office equipment which are not material to the Company's
operations and (iii) Liens pursuant to the bank credit agreement entered
into by Citicasters in October 1994. All leases to which the Company or
the Subsidiaries, Citicasters or Noble are a party are valid and binding
and no default has occurred or is continuing thereunder and the Company and
each of its Subsidiaries, Citicasters and Noble enjoy peaceful and
undisturbed possession under all such leases to which any of them is a
party as lessee with such exceptions as do not materially interfere with
the use made by the Company or any such Subsidiary, Citicasters and Noble.
(o) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, Citicasters and Noble filed or to be filed with
the Commission as part of the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and the
Subsidiaries, Citicasters or Noble as required by the Act. The
consolidated historical and PRO FORMA financial statements, together with
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related schedules and notes, set forth in the Prospectus and the
Registration Statement comply as to form in all material respects with the
requirements of the Act. Such historical financial statements fairly
present the consolidated financial position of the Company and the
Subsidiaries at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated, in
accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout such periods. Such PRO FORMA financial
statements have been prepared on a basis consistent with such historical
statements, except for the PRO FORMA adjustments specified therein, and
give effect to assumptions made on a reasonable basis and present fairly
the historical and proposed transactions contemplated by the Prospectus and
the Transaction Documents. The other financial and statistical information
and data included in the Prospectus and in the Registration Statement,
historical and PRO FORMA, are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company, Citicasters and Noble.
(p) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company and any of the Subsidiaries, Citicasters
or Noble have incurred any liabilities or obligations, direct or
contingent, which are material to the Company and the Subsidiaries taken as
a whole, Citicasters or Noble, respectively, nor entered into any
transaction not in the ordinary course of business and there has not been,
singly or in the aggregate, any material adverse change, or any development
which could reasonably be expected to involve a material adverse change, in
the properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company and the Subsidiaries taken
as a whole, Citicasters or Noble, respectively each individually (a
"Material Adverse Change").
(q) All tax returns required to be filed by the Company and any of
the Subsidiaries, Citicasters and Noble in any jurisdiction have been
filed, other
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than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty or
interest.
(r) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in connection
with the transactions contemplated by the Transaction Documents, except
such as may be required by the NASD or have been obtained and made under
the Act, the Exchange Act, the Trust Indenture Act of 1939, as amended (the
"TIA") or state securities or "Blue Sky" laws or regulations. Neither the
Company nor any of its affiliates is presently doing business with the
government of Cuba or with any person or affiliate located in Cuba.
(s) (i) Each of the Company and the Subsidiaries, Citicasters and
Noble have all certificates, consents, exemptions, orders, permits,
licenses, authorizations, or other approvals (each, an "Authorization") of
and from, and has made all declarations and filings with, all Federal,
state, local and other governmental authorities (including the Federal
Communications Commission ("FCC")), all self-regulatory organizations and
all courts and other tribunals, necessary or required to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent that the
failure to obtain or file could not, singly or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (ii) all such Authorizations
are valid and in full force and effect, (iii) each of the Company and the
Subsidiaries, Citicasters and Noble are in compliance in all material
respects with the terms and conditions of all such Authorizations and with
the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto and (iv) each commercial
radio broadcast station identified in the Prospectus as owned and operated
by any of the
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Company, the Subsidiaries, Citicasters or Noble, as applicable, are
operating with the maximum facilities specified by the Authorization
pertaining thereto.
(t) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding company" or a "subsidiary company" of a holding company, or
an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(u) No holder of any security of the Company has or will have any
right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
(v) The Shares have been approved for quotation on the Nasdaq
National Market, subject to notice of issuance.
(w) Each of the Company and the Subsidiaries, Citicasters and Noble
possess the patents, patent rights, licenses, inventions, copyrights, know-
how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, "Intellectual Property") presently
employed by them in connection with the businesses now operated by them, and
none of the Company and the Subsidiaries, Citicasters or Noble have received any
notice of infringement of or conflict with asserted rights of others with
respect to the foregoing which, singly or in the aggregate, could reasonably be
expected to result in any Material Adverse Change. The use of such Intellectual
Property in connection with the business and operations of each of the Company
and the Subsidiaries, Citicasters and Noble does not, to the Company's
knowledge, infringe on the rights of any person except where any such
infringement has not resulted in, or could not reasonably be expected to result
in any Material Adverse Change.
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(x) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
(y) Each of the Company and the Subsidiaries, Citicasters and Noble
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (3) access to
assets is permitted only in accordance with management's general or
specific authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(z) The Company has not (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which could
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares or (ii) since the initial filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Shares or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(aa) Each of the Company and the Subsidiaries, Citicasters and Noble
maintains insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and its Subsidiaries and their businesses. None of the Company and
any Subsidiary, Citicasters or Noble have received notice from any insurer
or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance. All
such insurance is
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outstanding and duly in force on the date hereof and will be outstanding
and duly in force on the Closing Date.
(bb) None of the Company, Citicasters or Noble have, directly or
indirectly, paid or delivered any fee, commission or other sum of money or
item or property, however characterized, to any finder, agent, government
official or other party, in the United States or any other country, which
is in any manner related to the business or operations of the Company,
Citicasters or Noble, respectively, which the Company knows or has reason
to believe to have been illegal under any Federal, state or local laws of
the United States or any other country having jurisdiction; and none of the
Company, Citicasters or Noble have participated, directly or indirectly, in
any boycotts or other similar practices in contravention of law affecting
any of its actual or potential customers.
(cc) Except as disclosed in the Prospectus, none of the Company,
Citicasters or Noble own any "margin securities" as that term is defined in
Regulations G and U of the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board"), and none of the proceeds of the sale of the
Shares will be used, directly or indirectly, for the purpose of purchasing
or carrying any margin security, for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Shares to be considered a "purpose credit" within the meanings of
Regulation G, T, U or X of the Federal Reserve Board.
(dd) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to a local
marketing agreement or a joint sales agreement (a "Licensee") has been
issued by the FCC an FCC license (which is in full force and effect) for
the operation of the commercial radio broadcast station identified in the
Prospectus as programmed by the Company or any of its Subsidiaries, which
licenses expire on the dates set forth in the Prospectus.
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(ee) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to an
exclusive sales agency agreement (a "Mexican Licensee"), has been issued by
the Mexican government all necessary Mexican licenses (which are in full
force and effect) for the operation of the commercial radio broadcast
station identified in the Prospectus as programmed by the Company or any of
its Subsidiaries. Each of the Company and its Subsidiaries have all
Authorizations necessary to deliver programming to the Mexican Licensees.
(ff) Each of the Company and its Subsidiaries, Citicasters and Noble
has filed with the FCC all material reports, documents, instruments,
information and applications required to be filed pursuant to the FCC's
rules, regulations and requests. No notice has been issued by the FCC
which could permit, or after notice or lapse of time or both could permit,
revocation or termination of any FCC license of any of the Subsidiaries, or
Noble or its subsidiaries or Citicasters or its subsidiaries, or to the
knowledge of the Company, of any of the Licensees prior to the expiration
dates thereof or which could reasonably be expected to result in any other
material impairment of any of the Company's, Subsidiaries or Noble or its
subsidiaries or Citicasters or its subsidiaries or, to the knowledge of the
Company, of any of the Licensees' rights thereunder and which could
reasonably be expected to, singly or in the aggregate, have a Material
Adverse Effect.
(gg) Each of the Stations is now operating, and has operated, in
compliance in all material respects with the Communications Act of 1934, as
amended (the "Communications Act"), and the published rules and regulations
of the FCC. There is not issued, outstanding or pending any Notice of
Violation, Notice of Apparent Liability, Order to Show Cause, material
complaint or investigation by or before the FCC which could materially
threaten or materially adversely affect any of the Company's or any of its
Subsidiary's, Noble's or its subsidiaries', Citicasters' or its
subsidiaries' or, to the knowledge of the Company, any Licensees' FCC
licenses or which could reasonably be expected to
25
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result in any material adverse effect upon any of the Company's,
Subsidiaries', Noble or its subsidiaries, Citicasters or its subsidiaries
or, to the knowledge of the Company, any Licensees' operation of its
respective stations and which could reasonably be expected to, singly or in
the aggregate, have a Material Adverse Effect, nor does the Company have
reason to believe that the FCC licenses with respect to the Stations will
not be renewed for a full eight year term when such FCC licenses are due
for renewal.
(hh) The execution, delivery and performance of the obligations by
the Company under this Agreement are not and will not be contrary to the
Communications Act, as amended, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
(ii) The execution, delivery and performance of the obligations by
each of the parties to the Merger Agreement and the Noble Acquisition
Agreement are not and will not be contrary to the Communications Act, will
not result in any violation of the FCC's published rules and regulations,
will not cause any forfeiture or impairment of any FCC license of any of
the Stations by or before the FCC, and will not require any consent,
approval or authorization of the FCC (other than approval for a transfer of
control over the relevant Stations). All necessary applications, exhibits
or other filings required by the FCC for transfer of control of the
Stations now controlled by Citicasters and Noble pursuant to the Merger
Agreement and the Noble Acquisition Agreement have been filed with the FCC
(the "Transfer Applications"). To the best of the Company's knowledge,
there are no circumstances that would cause the FCC to reject the Transfer
Applications.
(jj) For purposes of considering the application of the local
ownership rules contained in the Telecommunications Act of 1996, the Denver
market contains more than 45 commercial stations.
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(kk) The Company, Merger Sub, Citicasters and Noble (each, a "Merger
Party" and, collectively the "Merger Parties") have, to the extent each is
or will be a party thereto, all requisite corporate power and authority to
execute, deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Merger Parties, to the
extent each is a party thereto, and each constitutes a valid and legally
binding agreement of the Merger Party enforceable against each Merger Party
in accordance with its terms; except as set forth in the Prospectus, no
consent, approval, authorization or order of any court or governmental
agency or body is required for the performance of any of the Transaction
Documents by each of the Merger Parties, to the extent each is a party
thereto, or the consummation by each of the Merger Parties of any of the
transactions contemplated thereby, except such as may be required and have
been obtained, or upon effectiveness of the Registration Statement, will
have been obtained, under the Act, the Exchange Acts, the TIA, or state
securities or "Blue Sky" laws or regulations or such as may be required by
the NASD in connection with the purchase and distribution of the Shares by
the Underwriters; and none of the Merger Parties is (i) in violation of its
charter or bylaws, (ii) in violation of any statute, judgment, decree,
order, rule or regulation applicable to any of them or any of their
respective properties or assets, which violation would have a Material
Adverse Effect, or (ii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any of the
Transaction Documents or any other contract, indenture, mortgage, deed of
trust, loan agreement note, lease, license, franchise agreement, permit,
Authorizations, certificate or agreement or instrument to which any of them
is a party or to which any of them is subject, which default would have a
Material Adverse Effect.
(ll) The execution, delivery and performance by the Merger Parties,
to the extent each is a party thereto, of each of the Transaction
Documents, and the consummation by the respective Merger Parties of
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the transactions contemplated thereby, will not violate, conflict with or
constitute or result in a breach of or a default under (or an event which,
with notice or lapse of time, or both, would constitute a breach of or a
default under) any of (i) the terms or provisions of any of the Transaction
Documents or any other indenture, mortgage, deed of trust, loan agreement,
note, lease, license, franchise agreement, or agreement or instrument to
which a Merger Party, is a party or to which any of their respective
properties or assets are subject, which violation, conflict, breach or
default would have a Material Adverse Effect, (ii) the charter or bylaws of
the Merger Party, or (iii) any statute, judgment, decree, order, rule or
regulation of any court, governmental agency or other body or self
regulatory organization applicable to each Merger Party, or any of their
respective properties or assets, which violation, conflict, breach or
default would have a Material Adverse Effect.
(mm) The Merger and the Noble Acquisition have been duly authorized
by the relevant Merger Parties and the transactions contemplated by the
Transaction Documents have been approved, to the extent required, by all
appropriate corporate action; approval of the transactions contemplated by
the Transaction Documents by the shareholders of the Company is not
required; the Transaction Documents conform and the Merger and the Noble
Acquisition will conform in all material respects to the descriptions
thereof in the Prospectus.
(nn) The Company has delivered to the Underwriters a true and correct
copy of each of the Transaction Documents that have been executed and
delivered prior to the date of this Agreement and each other Transaction
Document in the form substantially as it will be executed and delivered,
together with all related agreements and all schedules and exhibits
thereto, and there have been no amendments, alterations, modifications or
waivers of any of the provisions of any of the Transaction Documents since
their date of execution or from the form in which it has been delivered to
the Underwriters; there exists as of the date hereof (after giving effect
to the transactions contemplated by the Transaction Docu-
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ments) no event or condition which would constitute a default or an event
of default (in each case as defined in the New Credit Facility, the LYONs
or the Sub Notes, respectively) under the New Credit Facility, the LYONs or
the Sub Notes, respectively, and no event or condition which would
constitute a default or an event of default (in each case as defined in
each of the Transaction Documents) under any of the Transaction Documents
other than the New Credit Facility, the LYONs or the Sub Notes,
respectively, which would result in a Material Adverse Effect or materially
adversely effect the ability of each of the Company, Citicasters or Noble
to consummate the transactions contemplated by the Transaction Documents.
(oo) No director, officer or substantial shareholder of the Company
has a 5% or greater interest (or no such persons collectively have a 10% or
greater interest), directly or indirectly, in Citicasters or Noble.
(pp) The shares of Common Stock to be issued pursuant to the Merger
Agreement, will not have upon issuance, voting power equal to or in excess
of 20% of the voting power outstanding before the issuance of the common
stock or securities convertible into or exercisable for Common Stock.
(qq) The LYONs have received a rating of [ ] from [ ]; and the
Sub Notes have received a rating of [ ] from [ ].
(rr) Each of the representations and warranties contained in each of
the Transaction Documents are true and correct on and as of the date
hereof, except as could not have a Material Adverse Effect.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (i) each of the
Underwriters and (ii) each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) any of the
Underwriters (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii)
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the respective officers, directors, partners, employees, representatives
and agents of any of the Underwriters or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as
an "Indemnified Person") to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, judgments, actions and
expenses (including without limitation and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Person) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement or the
Prospectus (including any amendment or supplement thereto) or any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, PROVIDED,
HOWEVER, that (i) except insofar as such losses, claims, damages,
liabilities, judgments, actions or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made
in reliance upon and in conformity with information relating to any of the
Underwriters furnished in writing to the Company by DLJ expressly for use
in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or any preliminary prospectus,
(ii) the foregoing indemnity agreement with respect to any untrue statement
contained in or omission from a preliminary prospectus shall not inure to
the benefit of the Underwriter from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased Shares, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on
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behalf of the Underwriters to such person, if such is required by law, at
or prior to the written confirmation of the sale of such Shares to such
person and the untrue statement contained in or omission from such
preliminary prospectus was corrected in the Prospectus (or the Prospectus
as amended or supplemented). The Company shall notify you promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company or an Indemnified
Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the Company,
such Underwriter (or the Underwriter controlled by such controlling person)
shall promptly notify the Company in writing (provided, that the failure to
give such notice shall not relieve the Company of its obligations pursuant
to this Agreement). Such Indemnified Person shall have the right to employ
its own counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Company (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder). The Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) at any time for such Indemnified Persons, which firm
shall be designated by DLJ. The Company shall be liable for any settlement
of any such action or proceeding effected with the Company's prior written
consent, which consent will not be unreasonably withheld, and the Company
agrees to indemnify and hold harmless any Indemnified Person from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have re-
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quested the Company to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the second sentence of this
paragraph, the Company agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement
is entered into more than 10 business days after receipt by the Company of
the aforesaid request, and (ii) the Company shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement. The Company shall not, without the prior written consent
of each Indemnified Person, settle or compromise or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened
action, claim, litigation or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not any Indemnified
Person is a party thereto), unless such settlement, compromise, consent or
termination includes an unconditional release of each Indemnified Person
from all liability arising out of such action, claim, litigation or
proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement, any person controlling (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
and the officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity
from the Company to each of the Indemnified Persons, but only with respect
to claims and actions based on information relating to such Underwriter
furnished in writing by DLJ expressly for use in the Prospectus.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, judgments,
actions and expenses (i) in such proportion as is appropriate to
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<PAGE>
reflect the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying parties and the indemnified
party, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and any of the
Underwriters, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by such Underwriter, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The indemnity and
contribution obligations of the Company set forth herein shall be in
addition to any liability or obligation the Company may otherwise have to
any Indemnified Person.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
PRO RATA allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities, judgments, actions or
expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by
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<PAGE>
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, none of the
Underwriters (and its related Indemnified Persons) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total underwriting discount applicable to the Shares purchased by such
Underwriter exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Shares under this Agreement are subject to
the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. The
Company shall have performed or complied with all of its obligations and
agreements herein contained and required to be performed or complied with
by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule 430A
promulgated under the Act, such post-effective amendment shall have become
effective) not later than 10:00 A.M. (and in the case of a Registration
Statement filed under Rule 462(b) of the Act, not later than 10:00 P.M.),
New York City time, on the date of this Agreement or at such later date and
time as you may approve in writing, (ii) at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no
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proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission and every request for additional
information on the part of the Commission shall have been complied with in
all material respects, and (iii) no stop order suspending the sale of the
Shares in any jurisdiction referred to in Section 5(g) shall have been
issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Shares; and no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as
of the Closing Date which would prevent the issuance of the Shares, the
LYONs, or the Sub Notes or the consummation of the transactions
contemplated by the Transaction Documents.
(d) (i) Since the date hereof or since the dates as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Change, (ii) since the date
of the latest balance sheet included in the Registration Statement and the
Prospectus, there shall not have been any material change in the capital
stock or long-term debt, or material increase in short-term debt, of the
Company or any of the Subsidiaries taken as a whole, Citicasters or Noble
and (iii) the Company and the Subsidiaries taken as a whole, Citicasters or
Noble shall have no liability or obligation, direct or contingent, that is
material to the Company and the Subsidiaries taken as a whole, Citicasters
or Noble, respectively, and is required to be disclosed on a balance sheet
in accordance with GAAP and is not disclosed on the latest applicable
balance sheet included in the Registration Statement and the Prospectus.
(e) Prior to or simultaneously with the closing date hereof, the New
Credit Facility shall have been duly executed and delivered by the parties
thereto and, upon consummation of the Merger, the
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Company shall be able to incur indebtedness under the New Credit Facility.
(f) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Vice President and a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(g) On the Closing Date, you shall have received:
(1) an opinion (satisfactory to you and your counsel), dated the
Closing Date, of Graydon, Head & Ritchey, counsel for the Company, to the
effect that:
(i) (A) the Company and each of the Subsidiaries
is a duly organized and validly existing corporation in good standing
under the laws of its jurisdiction of incorporation, has the requisite
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Prospectus, and is duly qualified as a foreign corporation and
in good standing in each jurisdiction where the ownership, leasing or
operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not
be reasonably expected to have, singly or in the aggregate, a Material
Adverse Effect; and (B) the Company has the requisite corporate power
and authority to execute, deliver and perform this Agreement;
(ii) the Company has full power and authority to
execute, deliver and perform its obligations under the Transaction
Documents;
(iii) the Transaction Documents have been duly
authorized, executed and delivered by the Company;
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(iv) (A) the authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
"Capitalization" and conforms in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus; (B) the shares of issued and outstanding Common Stock,
have been duly authorized and are validly issued and are fully paid
and nonassessable; (C) the Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and fully paid and nonassessable; and (D) the issuance of the
Shares is not subject to preemptive or other similar rights;
(v) all of the issued and outstanding shares of
capital stock of, or other ownership interests in, each Subsidiary
have been duly and validly authorized and issued, and the shares of
capital stock of, or other ownership interests in, each Subsidiary are
owned, directly or through Subsidiaries, by the Company, are fully
paid and nonassessable, and are owned free and clear of any Lien,
except for Liens pursuant to the New Credit Facility;
(vi) to the knowledge of such counsel (after due
inquiry) there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or Liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in,
any Subsidiary except as disclosed in the Prospectus;
(vii) neither the Company nor any of the
Subsidiaries is (a) an "investment company" or a company "controlled"
by an investment company within the meaning of the Investment Company
Act of 1940, as amended, or (b) a "holding company" or a "subsidiary
compa-
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ny" of a holding company, or an "affiliate" thereof within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
(viii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Shares, the LYONs or the Sub Notes will violate
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System;
(ix) when authenticated in accordance with the
terms of the respective indenture and delivered to and paid for in
accordance with the terms of the respective agreement, the LYONs and
the Sub Notes will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms and entitled to the benefits of the respective
indenture, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity) and except to the extent that a waiver of rights
under any usury laws may be unenforceable;
(x) to the best knowledge of such counsel, there
is no current, pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary or to which any of their
respective properties is subject of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus;
(xi) the descriptions in the Registration
Statement and the Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate in all
material respects and fairly present the
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information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in the
Registration Statement or Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements, notes or
schedules or other financial data included therein;
(xii) the Registration Statement has become
effective under the Act; any required filing of the Prospectus, and
any supplements and term sheets thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); and to the knowledge of such counsel (after due inquiry) no
stop order suspending the effectiveness of the Registration Statement
or any part thereof has been issued and no proceedings therefor have
been instituted or are pending or contemplated under the Act;
(xiii) no authorization, approval, consent or order
of, or filing with, any court or governmental body or agency is
required for the consummation by the Company of the transactions
contemplated by the Transaction Documents, except such as have been
obtained and made under the Act, the Exchange Act, the TIA, state
securities or "Blue Sky" laws or regulations or such as may be
required by the NASD; no authorization, approval, consent or order of,
or filing with, any court or governmental body or agency is required
for the consummation by the Company, Citicasters or Noble of the
transactions contemplated by the applicable Transaction Documents; the
execution and delivery of this Agreement, the issuance and sale of the
Shares, the performance of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in a
breach or violation of any of (A)
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any of the respective charters or bylaws of the Company or any of the
Subsidiaries or (B) to the knowledge of such counsel (after due
inquiry), the terms or provisions of any agreement or instrument which
is filed as an exhibit to the Registration Statement and to which the
Company or any of the Subsidiaries is a party or by which any of them
is bound, or to which any of the properties of the Company or any of
the Subsidiaries is subject, or (C) to the knowledge of such counsel
(after due inquiry) constitute a default under, any statute, rule or
regulation to which the Company or any Subsidiary is bound or to which
any of the properties of the Company or any Subsidiary is subject or
(D) any order of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of
their properties which conflict, breach or default in each of the
cases described in clauses (B), (C) and (D) could reasonably be
expected to have a Material Adverse Effect;
(xiv) at the time it became effective and on the
Closing Date, the Registration Statement complied as to form in all
material respects with the Act;
(xv) to the knowledge of such counsel, none of the
Company and the Subsidiaries, Citicasters or Noble have received any
notice of infringement of or conflict with asserted rights of others
with respect to the Intellectual Property which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to result in a Material Adverse
Change. The use of such Intellectual Property in connection with the
business and operations of the Company and the Subsidiaries,
Citicasters and Noble does not, to the knowledge of such counsel,
infringe on the rights of any person;
(xvi) to the best knowledge of such counsel, (A)
there are no franchises, contracts, indentures, mortgages, loan agree-
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ments, notes, leases or other instruments to which the Company and any
of the Subsidiaries, Citicasters and Noble are a party or by which any
of them may be bound that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement other than those described therein or filed
as exhibits thereto, (B) no default exists in the due performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described or filed in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement, or any agreement identified on a schedule
attached to the opinion, except for defaults which could not
reasonably be expected to have a Material Adverse Effect and (C) the
statements in the Prospectus under the captions "Description of
Capital Stock" and "Shares Eligible for Future Sale" insofar as they
relate to statements of law or legal conclusions, are accurate in all
material respects; and
(xvii) the Company and the Subsidiaries, Citicasters
and Noble to the extent each is a party thereto, have full power and
authority to execute, deliver and perform the Transaction Documents;
(xviii) the Transaction Documents; conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(xix) the Transaction Documents, assuming the
authorization, execution and delivery thereof by the parties other
than the Company, Merger Sub, Citicasters or Noble, constitute valid
and legally binding agreements of the respective parties thereto
enforceable against each of the parties, to the extent each is a party
thereto, in accordance with their respective terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting
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creditors' rights generally and to principles of equity (regardless of
whether enforcement is sought in a proceeding at law or equity) and
except to the extent that a waiver of rights under usury laws may be
unenforceable; and
(xx) the approval of the transactions contemplated
by the Transaction Documents by the shareholders of the Company is not
required.
(2) Such counsel shall additionally state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company, your representatives and your counsel in connection with the
preparation of the Registration Statement and Prospectus and has considered
the matters required to be stated therein and the statements contained
therein, although such counsel has not independently verified the accuracy,
completeness or fairness of such statements (except as indicated above);
and such counsel advises you that, on the basis of the foregoing, no facts
came to such counsel's attention that caused such counsel to believe that
the Registration Statement (as amended or supplemented, if applicable), at
the time such Registration Statement or any post-effective amendment became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading (other than information omitted
therefrom in reliance on Rule 430A under the Act), or the Prospectus (as
amended or supplemented), as of its date and the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Without limiting
the foregoing, such counsel may further state that the firm assumes no
responsibility for, and the firm has not independently verified, the
accuracy, completeness or fairness of the financial statements, notes and
schedules and other financial data included in the Registration Statement.
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(3) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Hogan & Hartson, counsel for the Company with respect to
FCC and related matters to the effect that:
(i) those statements in the Prospectus under the
caption "Business -- Federal Regulation of Radio Broadcasting" that
describe provisions of the Communications Act, and regulations, rules
and policies of the FCC, are accurate descriptions in all material
respects.
(ii) the execution, delivery and performance of
the obligations as of the date hereof of the Company and each of its
Subsidiaries, Citicasters and Noble under the Transaction Documents
will not violate any law, rule, regulation or order of the FCC or the
terms of any license.
(iii) no application, filing or registration with,
or approval, authorization, consent, adjudication or order of the FCC
which has not been made or obtained is required to be made or obtained
by the Company or any Subsidiary, Citicasters and Noble in connection
with the execution, delivery and performance of the obligations as of
the date hereof of the Company and each of its Subsidiaries,
Citicasters and Noble under the Transaction Documents.
(iv) Schedule A to the opinion shall set forth a
complete list of the authorizations issued by the FCC to the Company
and its Subsidiaries (for purposes of the opinion only, the
"Licenses"). To such counsel's knowledge, the Licenses are the only
licenses, permits or authorizations required under the Communications
Act for the operation of the radio stations listed on Schedule B (for
purposes of the opinion only, the "Jacor Stations"). Except for the
pending applications noted on Schedule A thereto, the Licenses are in
full force and effect (and the time within which any administrative or
judicial appeal,
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reconsideration, rehearing or other review has lapsed with respect to
the grant of the authorizations for the currently effective terms, and
no such appeal, reconsideration, rehearing, or other review has been
taken or instituted), and are duly and validly held by the relevant
Subsidiary, and are valid until the dates set forth in Schedule A
thereto. Except as indicated on Schedule C to such opinion, the
Licenses are not subject to any conditions other than those that
appear on the Licenses or are customarily imposed by the FCC on radio
stations of the same class and type. To such counsel's knowledge,
each of the Jacor Stations is licensed to operate with the maximum
facilities specified by the License pertaining thereto.
(v) Except as listed in Schedule D hereto, there
is no proceeding or other administrative action pending or, to such
counsel's knowledge, threatened, before the FCC against the Company or
any Subsidiary, which, if adversely determined, would adversely affect
the business or condition of the Company or any Subsidiary. To such
counsel's knowledge, except as listed on Schedules D and E to such
opinion, the Company and the Subsidiaries are in compliance with the
Licenses and with the provisions of the Communications Act and the
rules and regulations promulgated thereunder, except as would not have
a material adverse effect on the Company. To such counsel's
knowledge, except as listed on Schedule E to such opinion, the Company
and the Subsidiaries have filed with the FCC all material reports,
forms and statements required to be filed by the Company and the
Subsidiaries with the FCC with respect to the Jacor Stations, such
filings are complete and accurate and such filings have been timely.
(vi) Except that prior FCC approval is required
for a transfer of control, the execution, delivery and performance of
the obligations by the each of the parties under the Transaction
Documents are not and will not
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be contrary to the Communications Act, will not result in any
violation of the FCC's published rules and regulations (other than the
one-to-a-market rule), will not cause any forfeiture or impairment of
any FCC license of any of the Stations by or before the FCC, and will
not require any consent, approval or authorization of the FCC (other
than approval for a transfer of control over the relevant Stations).
All necessary applications, exhibits or other filings required by the
FCC for transfer of control of the Stations now controlled by
Citicasters and Noble pursuant to the Transaction Documents (for
purposes of the opinion only, the Transfer Applications") have been
filed with the FCC. To such counsel's knowledge, there are no
circumstances that would cause the FCC to reject the Transfer
Applications.
(4) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Haley Bader & Potts, counsel for Noble with respect to FCC
and related matters to the effect that:
(i) Schedule A to the opinion sets forth a
complete list of the authorizations issued by the FCC to Noble (for
purposes of the opinion only, the "Licenses"). To our knowledge, the
Licenses are the only licenses, permits or authorizations required
under the Communications Act for the operation of the radio stations
listed on Schedule B to such opinion (for purposes of the opinion
only, the "Noble Stations"). Except for the pending applications noted
on Schedule A to the opinion, the Licenses are in full force and
effect (and the time within which any administrative or judicial
appeal, reconsideration, rehearing or other review has lapsed with
respect to the grant of the authorizations for the currently effective
terms, and no such appeal, reconsideration, rehearing, or other review
has been taken or instituted), and are duly and validly held by the
relevant subsidiary, and are valid until the dates set forth in
Schedule A thereto. Except as indicated on Schedule C to the opinion,
the Licenses are not subject to any
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<PAGE>
conditions other than those that appear on the Licenses or are
customarily imposed by the FCC on radio stations of the same class and
type. To our knowledge, each of the Noble Stations is licensed to
operate with the maximum facilities specified by the License
pertaining thereto.
(ii) Except as listed in Schedule D to the
opinion, there is no proceeding or other administrative action pending
or, to such counsel's knowledge, threatened, before the FCC against
Noble, which, if adversely determined, would adversely affect the
business or condition of Noble. To such counsel's knowledge, except
as listed on Schedules D and E to the opinion, Noble is in compliance
with the Licenses and with the provisions of the Communications Act
and the Rules, except as would not have a material adverse effect on
Noble. To such counsel's knowledge, except as listed on Schedule E to
the opinion, Noble has filed with the FCC all material reports, forms
and statements required to be filed by Noble with the FCC with respect
to the Noble Stations, such filings are complete and accurate and such
filings have been timely.
(iii) Except that prior FCC approval is required
for a transfer of control, the execution, delivery and performance of
the obligations by the each of the parties under the Noble Acquisition
Agreement are not and will not be contrary to the Communications Act,
will not result in any violation of the FCC's published rules and
regulations, will not cause any forfeiture or impairment of any FCC
license of any of the stations by or before the FCC, and will not
require any consent, approval or authorization of the FCC (other than
approval for a transfer of control over the relevant stations). All
necessary applications, exhibits or other filings required by the FCC
for transfer of control of the Noble stations pursuant to the Noble
Acquisition Agreement (for purposes of the opinion only, the "Transfer
Applications") have been filed with the FCC. To such counsel's
knowledge, there are no cir-
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cumstances that would cause the FCC to reject the Transfer
Applications.
(5) An opinion (satisfactory to you and your counsel), dated the
Closing Date of ________________, counsel for Citicasters with respect to
FCC and related matters to the effect that:
(i) Schedule A to the opinion sets forth a
complete list of the authorizations issued by the FCC to Citicasters
(for purposes of the opinion only, the "Licenses"). To our knowledge,
the Licenses are the only licenses, permits or authorizations required
under the Communications Act for the operation of the radio stations
listed on Schedule B to the opinion (for purposes of the opinion only,
the "Citicasters Stations"). Except for the pending applications noted
on Schedule A thereto, the Licenses are in full force and effect (and
the time within which any administrative or judicial appeal,
reconsideration, rehearing or other review has lapsed with respect to
the grant of the authorizations for the currently effective terms, and
no such appeal, reconsideration, rehearing, or other review has been
taken or instituted), and are duly and validly held by the relevant
Subsidiary, and are valid until the dates set forth in Schedule A
thereto. Except as indicated on Schedule C to the opinion, the
Licenses are not subject to any conditions other than those that
appear on the Licenses or are customarily imposed by the FCC on radio
stations of the same class and type. To our knowledge, each of the
Citicasters Stations is licensed to operate with the maximum
facilities specified by the License pertaining thereto.
(ii) Except as listed in Schedule D to the
opinion, there is no proceeding or other administrative action pending
or, to our knowledge, threatened, before the FCC against Citicasters,
which, if adversely determined, would adversely affect the business or
condition of Citicasters. To such counsel's
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knowledge, except as listed on Schedules D and E to the opinion,
Citicasters is in compliance with the Licenses and with the provisions
of the Communications Act and the Rules, except as would not have a
material adverse effect on Citicasters. To such counsel's knowledge,
except as listed on Schedule E to the opinion, Citicasters has filed
with the FCC all material reports, forms and statements required to be
filed by Citicasters with the FCC with respect to the Citicasters
Stations, such filings are complete and accurate and such filings have
been timely.
(iii) Except that prior FCC approval is required
for a transfer of control, the execution, delivery and performance of
the obligations by the each of the parties under the Merger Agreement
is not and will not be contrary to the Communications Act, will not
result in any violation of the FCC's published rules and regulations,
will not cause any forfeiture or impairment of any FCC license of any
of the Stations by or before the FCC, and will not require any
consent, approval or authorization of the FCC (other than approval for
a transfer of control over the relevant stations). All necessary
applications, exhibits or other filings required by the FCC for
transfer of control of the Citicasters stations pursuant to the Merger
Agreement for purposes of the opinion only, the "Transfer
Applications") have been filed with the FCC. To such counsel's
knowledge, there are no circumstances that would cause the FCC to
reject the Transfer Applications.
(h) You shall have received an opinion, dated the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom ("Skadden Arps"), counsel for the
Underwriters, in form and substance reasonably satisfactory to you.
(i) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the
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former, in form and substance satisfactory to you, from Coopers & Lybrand,
Ernst & Young LLP and Price Waterhouse LLP, independent public accountants,
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus for each of the
Company, Citicasters and Noble, respectively.
(j) Skadden Arps shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
(l) At the Closing Date, the Shares and the LYONs shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
(m) You shall have received each of the opinions required to be
delivered under any of the other Transaction Documents, together with
appropriate reliance letters addressed to the Underwriters.
(n) There shall have been no amendments, alterations, modifications,
or waivers of any provisions of the Transaction Documents since the date of
the execution and delivery thereof by the parties thereto other than those
which under the Act are not required to be disclosed in the Prospectus or
any supplement thereto and which have been disclosed to the Underwriters
prior to the date hereof.
(o) Each of the Company, Citicasters and Noble shall, to the extent
each is a party thereto, have complied in all respects with all agreements
and covenants in the Transaction Documents and performed all conditions
specified therein that the terms
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<PAGE>
thereof require to be complied with or performed at or prior to the
Effective Time of the Merger.
(p) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have entered into the New Credit
Facility and satisfied all conditions to borrowing thereunder and you shall
received counterparts, conformed as executed, thereof. The Lenders under
the New Credit Facility shall have indicated to you that all such
conditions have been satisfied and that they are prepared to fund them term
loans in the amount of $_________ and revolving loans in the amount of
$__________ upon consummation of the Merger.
(q) Prior to or concurrently with the purchase and sale of the Shares
hereunder, the Company shall have completed the issuance and sale of the
LYONs and the Sub Notes.
(r) Except as is disclosed to the Underwriters in writing, the
representations and warranties of the Company, Citicasters and Noble set
forth in the Transaction Documents shall be true, accurate and complete in
all respects.
9. DEFAULTS. If on the Closing Date or any Option Closing Date, as
the case may be, any of the Underwriters shall fail or refuse to purchase Firm
Shares or Additional Shares, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate amount of Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter(s) agreed but
failed or refused to purchase does not exceed 10% of the total number of Shares
to be purchased on such date by all of the Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the number of
Firm Shares set forth opposite its name in Schedule I hereto bears to the total
number of Firm Shares which all the non-defaulting Underwriters, as the case may
be, have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm Shares or Additional Shares, as the case may be, that such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the number of
Firm Shares or Additional Shares, as the case may be, that any
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Underwriter has agreed to purchase pursuant to Section 3 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If, on the Closing Date or on the Option Closing
Date, as the case may be, any of the Underwriters shall fail or refuse to
purchase the Firm Shares or the Additional Shares, as the case may be, with
respect to which such default exceeds 10% of such total number of the Shares to
be purchased on such date by all Underwriter(s) and arrangements satisfactory to
the other Underwriter(s) and the Company for the purchase of such Shares are not
made within 48 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Underwriter(s) or the Company,
except as otherwise provided in this Section 9. In any such case that does not
result in termination of this Agreement, the Underwriters or the Company may
postpone the Closing Date or the Option Closing Date, as the case may be, for
not longer than seven (7) days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Underwriter from liability in respect of any default by any
such Underwriter under this Agreement.
10. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the later of (i) the execution and delivery of this
Agreement by the parties hereto, (ii) the effectiveness of the Registration
Statement, and (iii) if a post-effective amendment is required to be filed
pursuant to Rule 430A under the Act, the effectiveness of such post-effective
amendment.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change occurs
which, in the judgment of any Underwriter, make it impracticable or inadvisable
to market the Shares or to enforce contracts for the sale of the Shares, (ii)
any outbreak or escalation of hostilities or other national or international
calamity or crisis or material adverse change in the financial mar-
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kets of the United States or elsewhere, or any other substantial national or
international calamity or emergency if the effect of such outbreak, escalation,
calamity, crisis or emergency would, in the judgment of any Underwriter, make it
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares, (iii) any suspension or limitation of trading generally
in securities on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq Stock Market or in the over-the-counter markets or any setting of minimum
prices for trading on such exchanges or markets, (iv) any declaration of a
general banking moratorium by Federal, New York or Ohio authorities, (v) the
taking of any action by any Federal, state or local government or agency in
respect of its monetary or fiscal affairs that in your judgment has a material
adverse effect on the financial markets in the United States, and would, in your
judgment, make it impracticable or inadvisable to market the Shares or to
enforce contracts for the sale of the Shares, (vi) the enactment, publication,
decree, or other promulgation of any Federal or state statute, regulation, rule
or order of any court or other governmental authority which, in your judgment,
materially and adversely affects or will materially and adversely affect the
business or operations of the Company or any Subsidiary, or (vii) any securities
of the Company or any of the Subsidiaries shall have been downgraded or placed
on any "watch list" for possible downgrading by any nationally recognized
statistical rating organization, PROVIDED, that in the case of such "watch list"
placement, termination shall be permitted only if such placement would, in the
judgment of any Underwriter, make it impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares or materially impair
the investment quality of the Shares.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Company, its officers and directors and of
the Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Shares, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Shares and
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payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters pursuant to
clauses (i) or (vii) of the second paragraph of this Section 10 or because of
the failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
you for all out-of-pocket expenses (including the fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement,
the Company shall be liable for all expenses which it has agreed to pay pursuant
to Section 5(k) hereof.
11. NOTICES. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to it at Jacor
Communications, Inc. 1300 PNC Center, 201 East Fifth Street, Cincinnati, OH
45202, Attention: Randy Michaels, President, with a copy to Graydon, Head &
Ritchey, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202,
Attention: Richard G. Schmalzl, Esq., and (b) if to any Underwriter, to
Donaldson, Lufkin & Jenrette Securities Corporation, 140 Broadway, New York, New
York 10005, Attention: Syndicate Department, and, in each case, with a copy to
Skadden, Arps, Slate, Meagher & Flom at 300 South Grand Avenue, Suite 3400, Los
Angeles, California 90071, Attention: Gregg A. Noel, Esq., or in any case to
such other address as the person to be notified may have requested in writing.
12. SEVERABILITY. Any determination that any provision of this
Agreement may be, or is, unenforceable shall not affect the enforceability of
the remainder of this Agreement.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY, ON BEHALF OF ITSELF AND
ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY
OF THE MATTERS
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CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE
COMPANY, ON BEHALF OF ITSELF AND THE SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
14. SUCCESSORS. Except as otherwise provided, this Agreement has
been and is made solely for the benefit of and shall be binding upon the
Company, the Underwriters, any Indemnified Person referred to herein and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include
a purchaser of any of the Shares from any of the Underwriters merely because of
such purchase.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in one or more counterpart, the executed
counterparts shall each be deemed to be an original, not all such counterparts
shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to effect the meaning or
interpretation of, this Agreement.
17. SURVIVAL. The indemnities and contribution provisions and the
other agreements, representations and warranties of the Company, its officers
and directors and of the Underwriter set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Shares, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Underwriter or
by or on behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the
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Shares and payment for them hereunder and (iii) termination of this Agreement.
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This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
JACOR COMMUNICATIONS, INC.
By:
-----------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
MERRILL, LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
SMITH BARNEY INC.
Acting on behalf of themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
-----------------------------------
Name:
Title:
56
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SCHEDULE 1
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EXHIBIT 5.1
[GRAYDON, HEAD & RITCHEY LETTERHEAD]
June __, 1996
Jacor Communications, Inc.
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Re: Sale of 12,937,500 Shares of Common Stock of Jacor
Communications, Inc. Pursuant to Registration Statement
on Form S-3, File No. 333-01917, Filed with the
Securities and Exchange Commission
-----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Jacor Communications, Inc. (the "Company"),
an Ohio corporation, in connection with the registration of 12,937,500 shares
of common stock, no par value, of the Company (the "Shares"), all of which
are being sold by the Company as set forth on Form S-3 Registration
Statement, File No. 333-01917, as amended, as filed by the Company with the
Securities and Exchange Commission.
As counsel for the Company we have made such legal and factual
examinations and inquiries as we deem advisable for the purpose of rendering
this opinion. In addition, we have examined such documents and materials,
including the Amended and Restated Articles of Incorporation, as amended, the
Amended and Restated Code of Regulations, as amended, and other corporate
records of the Company, as we have deemed necessary for the purpose of this
opinion.
On the basis of the foregoing, we express the opinion that the Shares
have been duly authorized for issuance and sale as contemplated by the
Registration Statement, are free of preemptive rights and, when issued and
delivered by the Company as contemplated by the Registration Statement
against payment of the consideration set forth therein, will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as part of the
above-referenced Registration Statement and amendments thereto and
<PAGE>
Jacor Communications, Inc.
June __, 1996
Page 2
to the reference to our firm in both the preliminary and final Prospectus
under the caption "Legal Matters."
Very truly yours,
GRAYDON, HEAD & RITCHEY
By: ______________________
Richard G. Schmalzl
