<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Jacor Communications, Inc.
---------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 Par Value
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(Title of Class of Securities)
469858401
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(CUSIP Number)
James E. Evans, Esq.
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-2536
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 18, 1996
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with this statement [X].
Page 1 of 32 Pages
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CUSIP NO. 469858401 13D Page 2 of 32 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
American Financial Group, Inc. 31-1422526
American Financial Corporation 31-0624874
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio corporations
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
- - -
8 SHARED VOTING POWER
1,530,179 (See Item 5)
9 SOLE DISPOSITIVE POWER
- - -
10 SHARED DISPOSITIVE POWER
1,530,179 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,530,179 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.7% (See Item 5)
14 TYPE OF REPORTING PERSON*
HC
HC
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CUSIP NO. 469858401 13D Page 3 of 32 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
American Financial Enteprises, Inc. 31-0996797
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut corporation
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
- - -
8 SHARED VOTING POWER
521,572 (See Item 5)
9 SOLE DISPOSITIVE POWER
- - -
10 SHARED DISPOSITIVE POWER
521,572 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
521,572 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [X]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6% (See Item 5)
14 TYPE OF REPORTING PERSON*
HC
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CUSIP NO. 469858401 13D Page 4 of 32 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Carl H. Lindner
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
632,159
8 SHARED VOTING POWER
1,530,179
9 SOLE DISPOSITIVE POWER
632,159
10 SHARED DISPOSITIVE POWER
1,530,179
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON,
2,162,338
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.5%
14 TYPE OF REPORTING PERSON*
IN
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CUSIP NO. 46985840 13D Page 5 of 32 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Carl H. Lindner III
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
- - -
8 SHARED VOTING POWER
1,530,179
9 SOLE DISPOSITIVE POWER
- - -
10 SHARED DISPOSITIVE POWER
1,530,179
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,530,179
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.7%
14 TYPE OF REPORTING PERSON*
IN
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CUSIP NO. 46985840 13D Page 6 of 32 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
S. Craig Lindner
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
16,587
8 SHARED VOTING POWER
1,530,179
9 SOLE DISPOSITIVE POWER
16,587
10 SHARED DISPOSITIVE POWER
1,530,179
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,546,766
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.7%
14 TYPE OF REPORTING PERSON*
IN
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CUSIP NO. 46985840 13D Page 7 of 32 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Keith E. Lindner
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
3,664
8 SHARED VOTING POWER
1,530,179
9 SOLE DISPOSITIVE POWER
3,664
10 SHARED DISPOSITIVE POWER
1,530,179
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,533,843
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.7%
14 TYPE OF REPORTING PERSON*
IN
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This Schedule 13D is filed on behalf of American Financial Group, Inc.
("American Financial"), American Financial Corporation ("AFC"), American
Enterprises, Inc. ("AFE") and Carl H. Lindner, Carl H. Lindner III, S. Craig
Lindner and Keith E. Lindner (collectively, the "Lindner Family") (American
Financial, AFC, AFE and the Lindner Family are collectively referred to as
the "Reporting Persons").
As of June 30, 1996, the Lindner Family beneficially owned
approximately 36.3% of the outstanding common stock of American Financial and
American Financial beneficially owned (i) all of the common stock of AFC
(approximately 79% of AFC's outstanding voting equity securities) and (ii)
82.6% of the common stock of AFE. Through their ownership of common stock of
American Financial and their positions as directors and executive officers of
American Financial, AFC and AFE, the members of the Lindner Family may be
deemed to be controlling persons with respect to American Financial, AFC and
AFE.
Item 1. Security and Issuer.
This Schedule relates to shares of Common Stock, par value $.01 per
share, ("Jacor Common Stock"), issued by Jacor Communictions, Inc., a
Delaware corporation ("Jacor"). The principal executive offices of Jacor are
located at 1300 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202.
Item 2. Identity and Background.
See the schedule attached hereto as Exhibit 1 which contains
additional information concerning the Reporting Persons.
Item 3. Source and Amount of Funds or Other Consideration.
On September 18, 1996, a merger involving Citicasters Inc. and a
wholly-owned subsidiary of Jacor (the "Merger") was consummated. In the
Merger, the Reporting Persons received $29.50 in cash and a five-year warrant
("Jacor Warrant") to purchase .2035247 of a share of Jacor Common Stock at
the exercise price of $28 per share for each share of Citicasters common
stock held by the Reporting Persons prior to the Merger.
Item 4. Purpose of Transaction.
The Reporting Persons consider their beneficial ownership of Jacor
equity securities as an investment which they continue to evaluate. Although
they have no present plans to do so, from time to time the Reporting Persons
may acquire additional Jacor equity securities or dispose of some or all of
the Jacor equity securities which they beneficially own.
Except as set forth in this Item 4, the Reporting Persons presently
have no plans or proposals that relate to or would result in any of the
actions specified in clauses (a) through (j) of Item 4 of Schedule 13D.
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Item 5. Interest in Securities of the Issuer.
In the Merger, the Reporting Persons acquired beneficial ownership of
10,723,949 Jacor Warrants (exercisable into 2,182,589 shares of Jacor Common
Stock or approximately 6.5% of the outstanding shares) as follows:
Jacor Jacor
Holder Warrants (a) Common Stock
GAI 3,455,698 (b) 703,320
AFC 1,500,000 305,287
AFEI 2,562,697 521,572
Carl H. Lindner 2,935,801 597,508
CHL Foundation 170,253 (c) 34,651
S. Craig Lindner 81,500 (d) 16,587
Keith E. Lindner 18,000 (e) 3,664
Total: 10,723,949 2,182,589
(a) Each Jacor Warrant permits the holder to purchase a fractional share
(.2035247) of Jacor Common Stock.
(b) GAI = Great American Insurance Company, 100% owned by AFC.
(c) CHL Foundation = The Carl H. Lindner Foundation, a charitable
foundation. CHL has voting power over the securities held therein.
(d) Includes warrants held by his spouse as custodian for their minor
children or in a trust over which his spouse has voting and
investment power. Also includes 5,000 warrants held in a charitable
foundation. S. Craig Lindner has voting power over the securities
held therein.
(e) These warrants are held in a trust for the benefit of the minor
children of his brother, S. Craig Lindner, for which underlying
shares Keith E. Lindner has sole voting and investment power but no
financial interest.
Except as set forth in this Item 5, to the best knowledge and belief
of the undersigned, no transactions involving Jacor equity securities have
been effected during the past 60 days by the Reporting Persons or by the
directors or executive officers of American Financial, AFC or AFE.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
In connection with the Merger, the Reporting Persons and Jacor entered
into a Registration Rights Agreement pursuant to which Jacor filed a shelf
registration statement covering the sale of the Jacor Warrants and underlying
Jacor Common Stock. A copy of the Registration Rights Agreement is attached
as Exhibit 2 hereto.
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Item 7. Material to be filed as Exhibits.
(1) Schedule referred to in Item 2.
(2) Registration Rights Agreement referred to in Item 6.
(3) Agreement required pursuant to Regulation Section
240.13d-1(f)(1) promulgated under the Securities Exchange Act
of 1934, as amended.
(4) Powers of Attorney executed in connection with filings
under the Securities Exchange Act of 1934, as amended.
After reasonable inquiry and to the best knowledge and belief of the
undersigned, it is hereby certified that the information set forth in this
statement is true, complete and correct.
Dated: September 20, 1996
AMERICAN FINANCIAL GROUP, INC.
By: James E. Evans
James E. Evans, Senior Vice
President and General Counsel
AMERICAN FINANCIAL CORPORATION
By: James E. Evans
James E. Evans, Senior Vice
President and General Counsel
AMERICAN FINANCIAL ENTERPRISES,
INC.
By: James E. Evans
James E. Evans, Vice President &
General Counsel
Carl H. Lindner *
Carl H. Lindner
Carl H. Lindner III *
Carl H. Lindner III
S. Craig Lindner *
S. Craig Lindner
Keith E. Lindner *
Keith E. Lindner
* By James E. Evans, Attorney-in-Fact
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<PAGE>
Exhibit 1
Item 2. Identity and Background.
American Financial is a holding company which was formed to acquire
and own all of the outstanding common stock of both American Financial
Corporation ("AFC") and American Premier Underwriters, Inc. in a transaction
which was consummated in April 1995. American Financial is engaged primarily
in specialty and multi-line property and casualty insurance businesses and in
the sale of tax-deferred annuities and certain life and health insurance
products.
Carl H. Lindner's principal occupation is as Chairman of the Board of
Directors and Chief Executive Officer of American Financial. Mr. Lindner has
been Chairman of the Board and Chief Executive Officer of AFC since it was
founded over 35 years ago and has been Chairman of the Board and Chief
Executive Officer of American Premier Underwriters, Inc. since 1987. He is
also Chairman of the Board of AFE.
Carl H. Lindner III's principal occupation is as Co-President of
American Financial. He is also Co-President of AFC.
S. Craig Lindner's principal occupations are as Co-President of
American Financial and President of American Annuity Group, Inc., an
affiliate of American Financial. He is also Co-President of AFC.
Keith E. Lindner's principal occupations are as Co-President of
American Financial and President and Chief Operating Officer of Chiquita
Brands International, Inc., an affiliate of American Financial. He is also
Co-President of AFC.
The identity and background of the executive officers, directors and
controlling persons of American Financial and AFC (other than the Lindner
Family, which is set forth above) are as follows:
1. Theodore H. Emmerich is a retired managing partner of Ernst &
Young, certified public accountants, Cincinnati, Ohio. He is presently a
director of American Financial and AFC. Mr. Emmerich's address is 1201
Edgecliff Place, Cincinnati, Ohio, 45206.
2. James E. Evans' principal occupation is as Senior Vice President
and General Counsel of American Financial. He is Senior Vice President and
General Counsel of AFC, Vice President of AFE and presently serves as a
director of American Financial, AFC and AFE.
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3. Thomas M. Hunt's principal occupation is as President of Hunt
Petroleum Corporation, an oil and gas production company. He is presently a
director of American Financial and AFC. Mr. Hunt's business address is 5000
Thanksgiving Tower, 1601 Elm Street, Dallas, Texas, 75201.
4. William R. Martin's principal occupation is as Chairman of the
Board of MB Computing, Inc., a privately held computer software development
company. He is presently a director of American Financial and AFC. Mr.
Martin's business address is 245 46th Avenue, St. Petersburg Beach, Florida
33706.
6. Fred J. Runk's principal occupation is as Senior Vice President
and Treasurer of American Financial. He is also Senior Vice President and
Treasurer of AFC and Vice President and Treasurer of AFE.
7. Thomas E. Mischell's principal occupation is as Senior Vice
President - Taxes of American Financial. He is also a Senior Vice President
of AFC and Vice President of AFE.
The following are persons who are executive officers of AFC who are
not also executive officers of American Financial:
1. Sandra W. Heimann's principal occupation is as a Vice President of
AFC.
2. Robert C. Lintz's principal occupation is as a Vice President of
AFC.
American Financial Enterprises, Inc., a Connecticut corporation
("AFEI"), is the successor company to The New York, New Haven and Hartford
Railroad Company. AFEI's assets are invested primarily in the common stock
of American Financial and American Annuity Group, Inc. and in short-term
investments. The address of the principal executive offices of AFEI is One
East Fourth Street, Cincinnati, Ohio, 45202.
The identity and background of the executive officers, directors and
controlling persons of AFE (other than the Lindner Family, which is set forth
above) are as follows:
1. Robert D. Lindner's principal occupation is as Chairman of the
Board of Directors of United Dairy Farmers, Inc. He is presently a director
of AFE.
2. Julius S. Anreder's principal occupation is as Vice President of
Oscar Gruss & Son, Inc. He is presently a director of AFE and is a member of
the Audit and Compensation Committees of AFE's Board of Directors. Mr.
Anreder's business address is 74 Broad Street, New York, New York, 10004.
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3. James E. Evans' principal occupation is as Senior Vice President
and General Counsel of American Financial. He is presently a director,
Senior
Vice President and General Counsel of AFE.
4. Fred J. Runk's principal occupation is as Senior Vice President
and Treasurer of American Financial. He is presently a director, Vice
President and Treasurer of AFE.
5. Thomas E. Mischell's principal occupation is as Senior Vice
President - Taxes of American Financial. He is presently a Vice President of
AFE.
6. Ronald F. Walker's principal occupation is as an executive of AFC.
He is presently a director of AFE.
The Lindner Family and American Financial may be deemed to be
controlling persons with respect to AFC and AFE.
Unless otherwise noted, the business address of American Financial,
AFC and each of the persons listed above is One East Fourth Street,
Cincinnati, Ohio, 45202, and all of the individuals are citizens of the
United States.
None of the persons listed above have during the last five years (i)
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
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EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is entered
into as of August 5, 1996, by and among JACOR COMMUNICATIONS, INC., an Ohio
corporation ("Parent"), JCAC, INC., a Florida corporation and a wholly-owned
subsidiary of Parent ("Acquisition"), GREAT AMERICAN INSURANCE COMPANY, an
Ohio corporation ("Seller A"), AMERICAN FINANCIAL CORPORATION, an Ohio
corporation ("Seller B"), AMERICAN FINANCIAL ENTERPRISES, INC., a Connecticut
corporation ("Seller C"), CARL H. LINDNER ("Seller D"), THE CARL H. LINDNER
FOUNDATION, a charitable foundation ("Seller E"), and S. CRAIG LINDNER
("Seller F"). Seller A, Seller B, Seller C, Seller D, Seller E, Seller F,
Frances R. Lindner, as custodian and trustee for the children of Seller F,
and Keith E. Lindner, as trustee for the benefit of the children of Seller F,
are sometimes individually referred to herein as a "Seller" and are sometimes
collectively referred to herein as the "Sellers."
A. Parent, Acquisition, and Citicasters Inc., a Florida
corporation (the "Company"), entered into an Agreement and Plan of Merger
dated as of February 12, 1996 (the "Merger Agreement"), which provides, among
other things, upon the terms and subject to the conditions thereof, that
Acquisition will be merged with and into the Company in accordance with the
Florida Business Corporation Act (the "Merger") such that each share of Class
A Common Stock, par value $.01 per share, of the Company (the "Shares")
issued and outstanding immediately prior to the effective time of the Merger
(other than Shares owned by the Company, Parent, Acquisition, or any direct
or indirect subsidiary of the Company, Parent, or Acquisition, and any Shares
held in the treasury of the Company) will be converted into the right to
receive the Merger Consideration (as defined in the Merger Agreement).
B. Parent, Acquisition, and the Sellers entered into a
Stockholders Agreement dated as of February 12, 1996 (the "Stockholders
Agreement"), pursuant to which the parties agreed to enter into this
Agreement providing for shelf registration of resale of the Warrants and the
Warrant Shares (each as defined in the Merger Agreement).
NOW, THEREFORE, for and in consideration of the mutual
promises herein made, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
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"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For the
purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Day" means any day that is not a Saturday, a Sunday or a
legal holiday on which banking institutions in the State of Ohio are not
required to be open.
"Controlling Persons": See Section 7(a) hereof.
"Damages": See Section 7(a) hereof.
"Delay Period": See Section 5(e) hereof.
"Distributee": See Section 8(e) hereof.
"Effectiveness Period": See Section 2(b) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute, and the rules and
regulations of the SEC promulgated thereunder.
"Indemnified Party": See Section 7(c) hereof.
"Indemnifying Party": See Section 7(c) hereof.
"Majority of Sellers" means Sellers who in the aggregate hold
at least fifty percent (50%) of the Registrable Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
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<PAGE>
"Registrable Securities" means the Warrants and the Warrant
Shares issued to the Sellers pursuant to the Merger Agreement or thereafter
distributed by a Seller to a Distributee, until in the case of any such
security (i) it has been effectively registered under Section 5 of the
Securities Act and disposed of pursuant to an effective registration
statement under the Securities Act, (ii) it has been transferred other than
pursuant to Rule "4(1-1/2)" (or any similar private transfer exemption) under
the Securities Act or (iii) in the opinion of counsel to such Seller, it may
be transferred by a holder without registration pursuant to Rule 144 under
the Securities Act or any successor rule without regard to the volume
limitation contained in such rule.
"Registration Statement" means the registration statement of
Parent that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor statute, and the rules and regulations of
the SEC promulgated thereunder.
"Shelf Registration": See Section 2(a) hereof.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which securities of Parent are sold to or through one or more
underwriters for reoffering or sale to the public.
SECTION 2. SHELF REGISTRATION.
(a) Parent shall file with the SEC no later than the third
Business Day following the Closing (as defined in the Merger Agreement) a
Registration Statement under the Securities Act relating to the Registrable
Securities, which Registration Statement shall provide for the sale by the
holders thereof of the Registrable Securities from time to time on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act (the "Shelf
Registration").
(b) Parent agrees to use its best efforts to cause the SEC to
declare the Registration Statement to be effective as soon as possible.
Parent agrees to use its best efforts to keep the Registration Statement
filed pursuant to this Section 2 continuously effective and usable for the
resale of Registrable Securities for a period ending on the earlier of (i)
three years from the date that the SEC declares the Registration Statement to
be effective (the "Effective Date") and (ii) the first date on which all the
Registrable Securities covered by such Shelf Registration have been sold
pursuant to such Registration Statement (the "Effectiveness Period").
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<PAGE>
SECTION 3. DEMAND REGISTRATION.
(a) Subject to the terms of this Agreement, in the event that
Parent receives from a Majority of Sellers at any time prior to the
termination of this Agreement pursuant to Section 8(a), a written request
that the Parent effect any registration on Form S-3 (or any successor form to
Form S-3 regardless of its designation) for an offering of Registrable
Securities, Parent will promptly give written notice of the proposed
registration to all the Sellers and will, as soon as practicable, effect
registration of the Registrable Securities specified in such request,
together with all or such portion of the Registrable Securities of any Seller
joining in such request as are specified in a written request delivered to
Parent within 20 days after written notice from Parent of the proposed
registration. The demand registration right granted to Sellers in this
Section 3(a) may be exercised only once, and Parent shall not be obligated to
take any action to effect any such registration pursuant to this Section 3(a)
after such registration has been declared effective and, if underwritten, has
closed.
(b) If the requesting Majority of Sellers intend to distribute
the Registrable Securities covered by their request by means of an
underwriting, they shall so advise Parent as a part of their request made
pursuant to this Section 3, and Parent shall include such information in the
written notice referred to in Section 3(a). If a Majority of Sellers so
elect, such Sellers shall select one or more nationally recognized forms of
investment bankers to act as the book-running managing underwriter or
underwriters in connection with such offering; PROVIDED, such selection shall
be subject to the consent of Parent, which consent may not be unreasonably
withheld. The right of any Seller to be included in a registration pursuant
to Section 3(a) shall be conditioned upon such Seller's agreement to
participate in such underwriting and the inclusion of such Seller's
Registrable Securities in the underwriting (unless otherwise mutually agreed
by a Majority of Sellers and such Seller with respect to such participation
and inclusion).
(c) In the event the underwriter(s) advise the requesting
Majority of Sellers in writing that factors (including, without limitation,
the aggregate number of Registrable Securities requested to be registered,
the general condition of the market, and the status of the persons proposing
to sell securities pursuant to the registration) require a limitation of the
number of such Registrable Securities to be underwritten, then the requesting
Majority of Sellers shall so advise all Sellers, and the number of
Registrable Securities that may be included in the registration and
underwriting shall be allocated among all Sellers in proportion, as nearly as
practicable, to the number of shares proposed to be included in such
registration by such Sellers. No Registrable Securities excluded from the
underwriting by reason of this Section 3(c) shall be included in such
Registration Statement.
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(d) If any Seller of Registrable Securities, or a holder of
other securities entitled to be included in such registration, disapproves of
the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to Parent, the underwriter(s) and the Majority of Sellers
delivered at least seven days prior to the effective date of the Registration
Statement. The securities so withdrawn shall also be withdrawn from the
Registration Statement.
SECTION 4. HOLD-BACK AGREEMENT.
Each holder of Registrable Securities agrees, if such holder
is requested by an underwriter in an underwritten offering for Parent
(whether for the account of Parent or otherwise), not to effect any public
sale or distribution of any of Parent's securities during such time period as
Parent's directors are also required to refrain from any such sale or
distribution.
SECTION 5. REGISTRATION PROCEDURES.
(a) In connection with the registration obligations of Parent
pursuant to and in accordance with Sections 2 and 3 hereof (and subject to
Parent's rights under this Section 5), Parent will use its reasonable best
efforts to effect such registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto Parent shall as expeditiously as possible:
(i) prepare and file with the SEC such amendments
(including post-effective amendments) to the Registration Statement, and such
supplements to the Prospectus, as may be required by the rules, regulations
or instructions applicable to the Securities Act or the rules and regulations
thereunder during the applicable period in accordance with the intended
methods of disposition by the sellers thereof and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities Act;
(ii) notify the selling holders of Registrable
Securities promptly and (if requested by any such person) confirm such notice
in writing (A) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any request by the SEC for amendments or supplements
to the Registration Statement or related Prospectus or for additional
information regarding such holder, (C) of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (D) of the receipt by Parent
of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (E) of the happening of any event or the existence of any fact
that requires the making of any changes in
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such Registration Statement, Prospectus or document incorporated therein by
reference so that they 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;
(iii) use commercially reasonable efforts to obtain
the withdrawal of any order suspending the effectiveness of the Registration
Statement, or the lifting of any suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction in the United States;
(iv) furnish to counsel for a Majority of Sellers,
without charge, (i) a draft of any Prospectus, Prospectus supplement or post-
effective amendment relating to the Registration Statement in advance of
filing same with the SEC such that counsel will have a reasonable opportunity
to review and comment on same, PROVIDED, HOWEVER, that Parent shall not be
required to delay the filing of any such document with the SEC if in the
opinion of counsel to Parent, such filing must be made more promptly to
comply with applicable securities laws, rules and regulations, and (ii) one
conformed copy of the Registration Statement as declared effective by the SEC
and of each post-effective amendment thereto, in each case including
financial statements and schedules and all exhibits and reports incorporated
or deemed to be incorporated therein by reference; and such number of copies
of the preliminary prospectus, each amended preliminary prospectus, each
final Prospectus and each post-effective amendment or supplement thereto, as
the selling holders may reasonably request in order to facilitate the
disposition of the Registrable Securities covered by the Registration
Statement in conformity with the requirements of the Securities Act;
(v) prior to any public offering of Registrable
Securities, register or qualify such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions in the
United States as any selling holder shall reasonably request in writing; and
do any and all other reasonable acts or things necessary or advisable to
enable such holders to consummate the disposition in such jurisdictions of
such Registrable Securities covered by the Registration Statement; PROVIDED,
HOWEVER, that Parent shall in no event be required to qualify generally to do
business as a foreign corporation or as a dealer in any jurisdiction where it
is not at the time so qualified or to execute or file a general consent to
service of process in any such jurisdiction where it has not theretofore done
so or to take any action that would subject it to general service of process
or taxation in any such jurisdiction where it is not then subject;
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(vi) except during any Delay Period, upon the
occurrence of any event contemplated by paragraph 5(a)(ii)(B) or 5(a)(ii)(E)
above, prepare a supplement or post-effective amendment to each Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, such Prospectus will not contain an 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, in the light of the
circumstances under which they were made, not misleading;
(vii) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange or automated
dealer quotation system, if any, on which similar securities issued by Parent
are then listed; and
(viii) enter into an agreement with the
underwriter(s) for such underwritten offering in which Parent shall provide
to the underwriter(s) indemnities similar to those described in Section 7
hereof and in which Parent shall make customary representations and
warranties made by issuers of equity securities to underwriter(s) in an
underwritten securities offering of equity securities.
(b) Parent may require each seller of Registrable Securities
as to which any registration is being effected to furnish such information
regarding the distribution of such Registrable Securities and as to such
seller as it may from time to time reasonably request. If any such
information with respect to any seller is not furnished prior to the filing
of the Registration Statement, Parent may exclude such seller's Registrable
Securities from such Registration Statement.
(c) Each holder of Registrable Securities (including, without
limitation, any Distributee) agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from Parent of the happening of
any event of the kind described in Section 5(a)(ii)(B), 5(a)(ii)(C),
5(a)(ii)(D) or 5(a)(ii)(E) hereof or upon notice of the commencement of any
Delay Period, such holder shall forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(a)(vi) hereof, or until it is advised in
writing by Parent that the use of the applicable Prospectus may be resumed,
and has received copies of any amended or supplemented Prospectus or any
additional or supplemental filings which are incorporated, or deemed to be
incorporated, by reference in such Prospectus and, if requested by Parent,
such holder shall deliver to Parent (at the expense of Parent) all copies,
other than permanent file copies then in such holder's possession, of the
Prospectus covering such Registrable Securities at the time of receipt of
such request.
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(d) Each holder of Registrable Securities further agrees not
to utilize any material other than the applicable current Prospectus in
connection with the offering of Registrable Securities pursuant to a
registration.
(e) The foregoing notwithstanding, Parent shall have the right
in its sole discretion, based on any valid business purpose (including,
without limitation, to avoid the disclosure of any corporate development that
Parent is not otherwise obligated to disclose or to coordinate such
distribution with other shareholders that have registration rights with
respect to any securities of Parent or with other distributions of Parent
(whether for the account of Parent or otherwise)), to suspend the use of the
Registration Statement for a reasonable length of time (a "Delay Period") and
from time to time; PROVIDED, that the aggregate number of days in all Delay
Periods occurring in any period of twelve consecutive months shall not exceed
60. Parent shall provide written notice to each holder of Registrable
Securities covered by the Registration of the beginning and end of each Delay
Period and such holders shall cease all disposition efforts with respect to
Registrable Securities held by them immediately upon receipt of notice of the
beginning of any Delay Period.
(f) Parent may:
(i) in its sole discretion, include in the Shelf
Registration all of the Warrant Shares, including but not limited to the
Warrant Shares underlying the Warrants to be issued to Sellers in the Merger;
and/or
(ii) combine any offering of the Registrable
Securities with any offering of other securities of Parent (whether for the
account of Parent or otherwise), PROVIDED, that (A) a Majority of Sellers
shall have consented to the inclusion of such other securities, (B) the
offering is pursuant to a firm commitment underwriting and the managing or
principal underwriter shall have consented to the inclusion of such other
securities, and (C) all Registrable Securities requested to be registered and
included in the offering shall be included.
SECTION 6. REGISTRATION EXPENSES.
Whether or not the Registration Statement becomes effective,
Parent shall pay all costs, fees and expenses incident to Parent's
performance of or compliance with this Agreement, including, without
limitation, (i) all registration and filing fees, (ii) fees and expenses of
compliance with securities or Blue Sky laws, (iii) printing expenses
(including, without limitation, expenses of printing of prospectuses if the
printing of prospectuses is requested by the holders of a majority of the
Registrable Securities included in the Registration Statement), (iv) fees and
disbursements of counsel for Parent, and (v) fees and disbursements of all
independent certified public accountants of Parent and all other Persons
retained by Parent in connection with the Registration Statement.
Notwithstanding the foregoing,
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the fees and expenses of counsel to, or any other Persons retained by, any
holder of Registrable Securities, and any discounts, commissions,
underwriting or advisory fees, brokers' fees or fees of similar securities
industry professional (including any "qualified independent underwriter"
retained for the purpose of Rule 2720(c) of the National Association of
Securities Dealers, Inc.) relating to the distribution of the Registrable
Securities, will be payable by such holder and Parent will have no obligation
to pay any such amounts.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY PARENT. Parent agrees to indemnify and
hold harmless, to the full extent permitted by law, each Seller, its
partners, officers, directors, trustees, stockholders, employees, agents, and
investment advisers, and each Person who controls such Seller within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, or is under common control with, or is controlled by, such
Seller, together with the partners, officers, directors, trustees,
stockholders, employees, and agents of such controlling Person (collectively,
the "Controlling Persons"), from and against all losses, claims, damages,
liabilities, and expenses (including, without limitation, any legal or other
fees and expenses reasonably incurred by any Seller or any such Controlling
Person in connection with defending or investigating any action or claim in
respect thereof) (collectively, the "Damages") to which such Seller, its
partners, officers, directors, trustees, stockholders, employees, agents, and
investment advisers, and any such Controlling Person may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of material fact contained in the Registration Statement (or any
amendment or supplement thereto), including all documents incorporated
therein by reference, or arise out of or are based upon 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 light of the
circumstances under which they were made not misleading, or arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (as amended or supplemented if Parent shall
have furnished any amendments or supplements thereto), or arise out of or are
based upon 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 light of the circumstances under which they were made, not misleading,
except insofar as such Damages arise out of or are based upon any such untrue
statement or omission based upon information relating to such Seller
furnished in writing to Parent by such Seller expressly for use therein.
(b) INDEMNIFICATION BY THE SELLERS. Each Seller agrees,
severally and not jointly, to indemnify and hold harmless Parent, its
directors, officers and each Person, if any, who controls Parent within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from Parent to
such Seller, but only with
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<PAGE>
reference to information relating to such Seller furnished to Parent in
writing by such Seller expressly for use in the Registration Statement (or
any amendment or supplement thereto) or the Prospectus (or any amendment or
supplement thereto) and used therein as so provided; provided, however, that
such Seller shall not be obligated to provide such indemnity to the extent
that such Damages result from the failure of Parent to promptly amend or take
action to correct or supplement such Registration Statement or Prospectus on
the basis of corrected or supplemental information provided in writing by
such Seller to Parent expressly for such purpose. In no event shall the
liability of any Seller of Registrable Securities hereunder be greater in
amount than the amount of the proceeds received by such Seller upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(c) INDEMNIFICATION PROCEDURES. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "indemnified party") shall
promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceedings and shall pay the fees and disbursements of such counsel relating
to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel, or (ii) the indemnifying party fails promptly
to assume the defense of such proceeding or fails to employ counsel
reasonably satisfactory to such indemnified party or parties, or (iii) (A)
the named parties to any such proceeding (including any impleaded parties)
include both such indemnified party or parties and any indemnifying party or
an Affiliate of such indemnified party or parties or of any indemnifying
party, (B) there may be one or more defenses available to such indemnified
party or parties or such Affiliate of such indemnified party or parties that
are different from or additional to those available to any indemnifying party
or such Affiliate of any indemnifying party and (C) such indemnified party or
parties shall have been advised by such counsel that there may exist a
conflict of interest between or among such indemnified party or parties or
such Affiliate of such indemnified party or parties and any indemnifying
party or such Affiliate of any indemnifying party, in which case, if such
indemnified party or parties notifies the indemnifying party or parties in
writing that it elects to employ separate counsel of its choice at the
expense of the indemnifying parties, the indemnifying parties shall not have
the right to assume the defense thereof and such counsel shall be at the
expense of the indemnifying parties, it being understood, however, that
unless there exists a conflict among indemnified parties, the indemnifying
parties shall not, in connection with any one such proceeding or separate but
substantially similar or related proceedings in the same jurisdiction,
arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one separate firm of attorneys (together
with
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appropriate local counsel) at any time for such indemnified party or parties.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party or parties from and against
any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is a party, and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
(d) CONTRIBUTION. To the extent that the indemnification
provided for in paragraph (a) or (b) of this Section 7 is unavailable to an
indemnified party or insufficient in respect of any Damages, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such Damages in such proportion as
is appropriate to reflect the relative fault of Parent on the one hand and
the Seller on the other hand in connection with the statements or omissions
that resulted in such Damages, as well as any other relevant equitable
considerations. The relative fault of Parent on the one hand and of the
Sellers on the other hand 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 relates to
information supplied by Parent or by the Sellers and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
Notwithstanding the provisions of this Section 6(d), no Seller
shall be required to contribute any amount which, when added to any amounts
payable by such Seller pursuant to Section 7(b), is in excess of the amount
by which the total price at which the Registrable Securities of such Seller
were sold exceeds the amount of any Damages which such Seller has otherwise
been required to pay by reason of such untrue statement or omission. Each
Seller's obligation to contribute pursuant to this Section 7(d) is several in
the proportion that the sale proceeds received by such Seller bears to the
total sale proceeds received by all of the Sellers and not joint.
Parent and each Seller agrees that it would not be just or
equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to herein. No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
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<PAGE>
SECTION 8. MISCELLANEOUS.
(a) RULE 144. Until such time as no Warrants remain
outstanding, Parent shall comply with Rule 144(c) promulgated under the
Securities Act and shall make publicly available, and available to Sellers,
such information as is necessary to enable Sellers to sell Registrable
Securities pursuant to Rule 144 promulgated under the Securities Act.
(b) TERMINATION. This Agreement and the obligations of Parent
hereunder shall terminate on the earliest of (i) the first date on which no
Registrable Securities remain outstanding, and (ii) the close of business on
the last day of the Effectiveness Period, PROVIDED, HOWEVER, the obligations
of the parties pursuant to Sections 6, 7 and 8(a) hereof shall survive such
termination and continue in full force and effect notwithstanding anything in
this Agreement to the contrary.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless Parent has obtained the written consent of a
Majority of Sellers.
(d) NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall
be deemed given: when delivered personally; one Business Day after being
deposited with a next-day air courier; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back if
telexed and when receipt is acknowledged, if telecopied, in each case to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice; PROVIDED that notices of a change of
address shall be effective only upon receipt thereof):
(i) if to a holder, at the most current address given by such
holder to Parent in accordance with the provisions of this Section 8(c); and
(ii) if to Parent, initially at 1300 PNC Center, 201 East
Fifth Street, Cincinnati, Ohio 45202, Attention: Randy Michaels, Fax: (513)
621-6087, with a copy to Graydon, Head & Ritchey, 1900 Fifth Third Center,
Cincinnati, Ohio 45202, Attention: John J. Kropp, Esq., Fax: (513) 651-3836.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties; PROVIDED that the holders may not assign their rights hereunder
except to an Affiliate of such holder or a Distributee (as defined below) and
no person (other than any such Affiliate or Distributee) who acquires
Registrable Securities from a holder shall have any rights hereunder. For
purposes of this Agreement, the term "Distributee" shall mean any person that
is a stockholder or partner of a Seller, or any person that is a stockholder
or partner of a Distributee, to which Registrable Securities are transferred
or distributed by
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<PAGE>
such Seller or Distributee. This Agreement shall survive any transfer of
Registrable Securities to a Distributee and shall inure to the benefit of
such Distributee.
(f) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF OHIO WITHOUT
GIVING EFFECT TO THE PROVISIONS THEREOF GOVERNING CONFLICT OF LAWS
PRINCIPLES.
(i) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants, and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void, or unenforceable.
(j) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
warranties, or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by Parent with
respect to the Registrable Securities issued pursuant to the Merger
Agreement. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(k) CALCULATION OF TIME PERIODS. Except as otherwise
indicated, all periods of time referred to herein shall include all
Saturdays, Sundays and holidays; PROVIDED, that if the date to perform the
act or give any notice with respect to this Agreement shall fall on a day
other than a Business Day, such act or notice may be timely performed or
given if performed or given on the next succeeding Business Day.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
JACOR COMMUNICATIONS, INC.
By: Jon M. Berry
Name: Jon M. Berry
Title: Senior Vice President
JCAC, INC.
By: Jon M. Berry
Name: Jon M. Berry
Title: Senior Vice President
GREAT AMERICAN INSURANCE COMPANY
By: Sandra W. Heimann
Name: Sandra W. Heimann
Title: Vice President
AMERICAN FINANCIAL CORPORATION
By: James E. Evans
Name: James E. Evans
Title: Senior Vice President
AMERICAN FINANCIAL ENTERPRISES,
INC.
By: James E. Evans
Name: James E. Evans
Title: Senior Vice President
THE CARL H. LINDNER FOUNDATION
By: Carl H. Lindner
Name: Carl H. Lindner
Title: Trustee
Carl H. Lindner
S. Craig Lindner
S. CRAIG LINDNER
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Exhibit 3
AGREEMENT
This Agreement executed this 7th day of April, 1995, is by and among
American Premier Group, Inc. ("American Premier"), American Financial
Corporation ("AFC"), both Ohio corporations and American Financial
Enterprises, Inc. ("AFEI"), a Connecticut corporation, located at One East
Fourth Street, Cincinnati, Ohio 45202, and Carl H. Lindner ("CHL"), Carl H.
Lindner III (CHL III), S. Craig Lindner ("SCL") and Keith E. Lindner ("KEL"),
each an individual, the business address of each is One East Fourth Street,
Cincinnati, Ohio 45202. CHL, CHL III, SCL and KEL are referred to herein
collectively as the Lindner Family.
WHEREAS, as of the date of this Agreement, American Premier owns 100%
of the common stock of AFC, AFC beneficially owns 82.6% of the common stock
of AFEI and the Lindner Family beneficially owns approximately 49.9% of
American Premier's outstanding Common Stock and each member of the Lindner
Family is a director and executive officer of American Premier and AFC;
WHEREAS, the Lindner Family may be deemed to be the beneficial owner
of securities held by American Premier, AFC and AFEI and their subsidiaries
pursuant to Regulation Section 240.13d-3 promulgated under the Securities
Exchange Act of 1934, as amended;
WHEREAS, American Premier, AFC and AFEI and their subsidiaries from
time to time must file statements pursuant to certain sections of the
Securities Exchange Act of 1934, as amended, concerning the ownership of
equity securities of public companies;
NOW THEREFORE BE IT RESOLVED, that American Premier, AFC, AFEI and the
Lindner Family, do hereby agree to file jointly with the Securities and
Exchange Commission any schedules or other filings or amendments thereto made
by or on behalf of American Premier, AFC, AFEI or any of their subsidiaries
pursuant to Section 13(d), 13(f), 13(g), and 14(d) of the Securities Exchange
Act of 1934, as amended.
AMERICAN PREMIER GROUP, INC.
AMERICAN FINANCIAL CORPORATION
AMERICAN FINANCIAL ENTERPRISES, INC.
By: /s/ James E. Evans
James E. Evans Vice President &
General Counsel
/s/ Carl H. Lindner
Carl H. Lindner
/s/ Carl H. Lindner III
Carl H. Lindner III
/s/ S. Craig Lindner
S. Craig Lindner
/s/ Keith E. Lindner
Keith E. Lindner
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<PAGE>
Exhibit 4
POWER OF ATTORNEY
I, Carl H. Lindner, do hereby appoint James E. Evans and James C.
Kennedy, or either of them, as my true and lawful attorneys-in-fact to sign
on my behalf individually and as Chairman of the Board of Directors and Chief
Executive Officer of American Financial Group, Inc. or as a director or
executive officer of any of its subsidiaries and to file with the Securities
and Exchange Commission any schedules or other filings or amendments thereto
made by me or on behalf of American Financial Group, Inc. or any of its
subsidiaries pursuant to Sections 13(d), 13(f), 13(g), and 14(d) of the
Securities and Exchange Act of 1934, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand at Cincinnati, Ohio
this 4th day of April, 1995.
/s/ Carl H. Lindner
Carl H. Lindner
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<PAGE>
POWER OF ATTORNEY
I, Carl H. Lindner III, do hereby appoint James E. Evans and James C.
Kennedy, or either of them, as my true and lawful attorneys-in-fact to sign
on my behalf individually and as an officer or director of American Financial
Group, Inc. or as a director or executive officer of any of its subsidiaries
and to file with the Securities and Exchange Commission any schedules or
other filings or amendments thereto made by me or on behalf of American
Financial Group, Inc. or any of its subsidiaries pursuant to Sections 13(d),
13(f), 13(g), and 14(d) of the Securities and Exchange Act of 1934, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand at Cincinnati, Ohio
this 4th day of April, 1995.
/s/ Carl H. Lindner III
Carl H. Lindner III
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<PAGE>
POWER OF ATTORNEY
I, S. Craig Lindner, do hereby appoint James E. Evans and James C.
Kennedy, or either of them, as my true and lawful attorneys-in-fact to sign
on my behalf individually and as an officer or director of American Financial
Group, Inc. or as a director or executive officer of any of its subsidiaries
and to file with the Securities and Exchange Commission any schedules or
other filings or amendments thereto made by me or on behalf of American
Financial Group, Inc. or any of its subsidiaries pursuant to Sections 13(d),
13(f), 13(g), and 14(d) of the Securities and Exchange Act of 1934, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand at Cincinnati, Ohio
this 4th day of April, 1995.
/s/ S. Craig Lindner
S. Craig Lindner
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<PAGE>
POWER OF ATTORNEY
I, Keith E. Lindner, do hereby appoint James E. Evans and James C.
Kennedy, or either of them, as my true and lawful attorneys-in-fact to sign
on my behalf individually and as an officer or director of American Financial
Group, Inc. or as a director or executive officer of any of its subsidiaries
and to file with the Securities and Exchange Commission any schedules or
other filings or amendments thereto made by me or on behalf of American
Financial Group, Inc. or any of its subsidiaries pursuant to Sections 13(d),
13(f), 13(g), and 14(d) of the Securities and Exchange Act of 1934, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand at Cincinnati, Ohio
this 4th day of April, 1995.
/s/ Keith E. Lindner
Keith E. Lindner
- 32 -
