<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(AMENDMENT NO.4)1
JACOR COMMUNICATIONS, INC.
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(Name of Company)
COMMON STOCK
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(Title of class of securities)
469858 41 0
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(CUSIP number)
Sheli Z. Rosenberg
Two N. Riverside Plaza, Suite 600, Chicago, IL 60606
(312) 466-3990
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(Name, address and telephone number of person authorized to receive notices
and communications)
October 8, 1998
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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 [].
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
(Continued on following pages)
(Page 1 of 47 Pages)
________________________________
1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
<PAGE> 2
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CUSPID No. 469858 41 0 13D/A Page 2 of 47 Pages
- ----------------------- ------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Zell/Chilmark Fund, L.P.
36-3716608
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)[]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7 SOLE VOTING POWER
NUMBER OF
13,349,720
SHARES -----------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
13,349,720
REPORTING -----------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON WITH
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
13,349,720
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
approximately 26.2%
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14 TYPE OF REPORTING PERSON
PN
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<PAGE> 3
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CUSPID No. 469858 41 0 13D/A Page 3 of 47 Pages
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- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Samstock, L.L.C.
36-4156890
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)[]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7 SOLE VOTING POWER
NUMBER OF
437,858
SHARES -----------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
437,858
REPORTING -----------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON WITH
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
437,858
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
approximately 3.3%
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14 TYPE OF REPORTING PERSON
00
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<PAGE> 4
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CUSPID No. 469858 41 0 13D/A Page 4 of 47 Pages
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1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
SZ2 (IGP) Partnership
36-3870923
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)[]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7 SOLE VOTING POWER
NUMBER OF
60,243
SHARES -----------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
60,243
REPORTING -----------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON WITH
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
60,243
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
approximately 0.5%
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14 TYPE OF REPORTING PERSON
PN
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<PAGE> 5
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CUSPID No. 469858 41 0 13D/A Page 5 of 47 Pages
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1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Anda Partnership
88-0132846
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)[]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7 SOLE VOTING POWER
NUMBER OF
0
SHARES -----------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING -----------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON WITH
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
0
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
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14 TYPE OF REPORTING PERSON
PN
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<PAGE> 6
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CUSPID No. 469858 41 0 13D/A Page 6 of 47 Pages
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1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Samuel Zell
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)[]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7 SOLE VOTING POWER
NUMBER OF
9,289
SHARES -----------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY -----------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
9,289
REPORTING -----------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON WITH
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
9,289
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
approximately 0.02%
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14 TYPE OF REPORTING PERSON
IN
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<PAGE> 7
This Amendment No. 4 (this "Amendment") amends and restates, in their entirety,
the Statement on Schedule 13D dated April 23, 1993, Amendment No. 1 thereto
dated July 20, 1993, Amendment No. 2 thereto dated February 12, 1996 and
Amendment No. 3 thereto dated May 16, 1997 (such original Schedule 13D, along
with Amendments No. 1 through 3 collectively being referred to herein as the
"Statement"), by Zell/Chilmark Fund, L.P., Samstock, L.L.C., SZ2 (IGP)
Partnership and Anda Partnership relating to the common stock, par value $.01
per share, of JACOR COMMUNICATIONS, INC., a Delaware corporation.
Item 1. Security and Issuer
This Statement relates to the common stock, $.01 par value per share ("Common
Stock") of Jacor Communications, Inc. (the "Issuer"). The Issuer has its
principal executive office at 50 East RiverCenter Blvd., 12th Floor, Covington,
Kentucky 41011.
Item 2. Identity and Background
Item 2 is hereby amended to read in its entirety as follows:
(a)-(c) The following are Reporting Persons:
1) Zell/Chilmark Fund, L.P., a Delaware limited partnership
("Zell/Chilmark");
2) Samstock, L.L.C., a Delaware limited liability company
("Samstock");
3) SZ2 (IGP) Partnership, an Illinois general partnership
("SZ2");
4) Anda Partnership, a Nevada general partnership ("Anda"); and
5) Samuel Zell, an individual.
The business address of Zell/Chilmark, Samstock, SZ2, Anda and
Samuel Zell (herein the "Reporting Persons") is Two N. Riverside
Plaza, Chicago, IL 60606.
Zell/Chilmark: Zell/Chilmark is controlled by Samuel Zell, David
M. Schulte, Rod F. Dammeyer and Sheli Z. Rosenberg.
Zell/Chilmark is controlled by its sole general partner, ZC
Limited Partnership, an Illinois limited partnership ("ZC
Limited"). ZC Limited is controlled by its sole general partner,
ZC Partnership, a Delaware general partnership ("ZC"). ZC's
partners are ZC, Inc., an Illinois corporation ("ZCI"), wholly
owned and controlled by Mr. Zell, and CZ Inc., a Delaware
corporation ("CZI"), wholly owned and controlled by Mr. Schulte.
ZC has delegated its full power and authority to represent itself
to an executive committee of ZC comprised of Messrs. Zell and
Schulte and two delegates appointed by Mr. Zell. Mr. Zell has
appointed Mr. Dammeyer and Mrs. Rosenberg as his delegates.
Certain information concerning Messrs. Zell, Schulte and Dammeyer
and Mrs. Rosenberg is set forth in Appendix A hereto. The
address of ZCI, Messrs. Zell and Dammeyer and Mrs. Rosenberg is
Two N. Riverside Plaza, Suite 600, Chicago, Illinois 60606. The
address of Mr. Schulte is 875 N. Michigan Avenue, Chicago,
Illinois 60611.
The principal business of Zell/Chilmark and, through
Zell/Chilmark, of ZC Limited, ZC, ZCI and CZI is investing in,
and providing capital and management support to, companies that
are engaged in or are the appropriate subject of significant
recapitalizations or corporate restructurings. Certain
information concerning the executive officers, directors and
principal shareholders of ZCI and CZI is set forth in Appendix A
hereto.
Information for ZCI and CZI, the sole partners of ZC, is as
follows:
Page 7 of 47
<PAGE> 8
The officers of ZCI are:
Samuel Zell President
Rod F. Dammeyer Vice President
Donald J. Liebentritt Vice President
Sheli Z. Rosenberg Vice President
Arthur A. Greenberg Vice President and Treasurer
Certain information concerning Messrs. Zell, Dammeyer, Greenberg
& Liebentritt and Mrs. Rosenberg is set forth in Appendix A
hereto. The address for ZCI, Messrs. Zell, Dammeyer, Greenberg
and Liebentritt, and Mrs. Rosenberg is Two N. Riverside Plaza,
Chicago, Illinois 60606.
The officers of CZI are:
David M. Schulte President
Joel S. Friedland Vice President
Matthew R. Rosenberg Vice President
Certain information concerning Messrs. Schulte, Friedland and
Rosenberg is set forth in Appendix A hereto. The address for
CZI, Messrs. Schulte, Friedland and Rosenberg is 875 N. Michigan
Avenue, Chicago, Illinois 60611.
Samstock, L.L.C.
Samstock is a Delaware limited liability company whose sole
member is SZ Investments, L.L.C., a Delaware limited liability
company. The members of SZ Investments, L.L.C. are: 1) Alphabet
Partners, an Illinois general partnership; 2) ZFT Partnership, an
Illinois general partnership; and 3) Zell General Partnership,
Inc.
Alphabet Partners is composed of three trusts created for the
benefit of Samuel Zell. Arthur A. Greenberg is the sole trustee
of the three trusts. Certain information concerning Mr. Greenberg
is set forth in Appendix A hereto. The address for Alphabet
Partners and Mr. Greenberg is Two N. Riverside Plaza, Chicago,
Illinois 60606.
ZFT Partnership is composed of fifteen trusts created for the
benefit of Samuel Zell. Sheli Z. Rosenberg is the sole trustee
of the fifteen trusts. Certain information concerning Mrs.
Rosenberg is set forth in Appendix A hereto. The address for ZFT
Partnership and Mrs. Rosenberg is Two N. Riverside Plaza,
Chicago, Illinois 60606.
Zell General Partnership, Inc. ("Zell G.P.") is an Illinois
corporation whose sole stockholder is Samuel Zell as Trustee of
the Samuel Zell Revocable Trust under trust agreement dated
January 17, 1990. Mr. Zell is also the beneficiary of the trust.
The officers of Zell G.P. are: Samuel Zell, President and Sheli
Z. Rosenberg, Rod F. Dammeyer and Donald J. Liebentritt, Vice
Presidents. Certain information concerning Messrs. Zell, Dammeyer
and Liebentritt and Mrs. Rosenberg is set forth in Appendix A
hereto. The address for Zell G.P., Messrs. Zell, Dammeyer and
Liebentritt and Mrs. Rosenberg is Two N. Riverside Plaza,
Chicago, Illinois 60606.
The officers of Samstock are: Samuel Zell, President and Sheli
Z. Rosenberg, Rod F. Dammeyer, and Donald J. Liebentritt, Vice
Presidents. Certain information concerning Messrs. Zell, Dammeyer
and Liebentritt and Mrs. Rosenberg is set forth in Appendix A.
Page 8 of 47
<PAGE> 9
SZ2 (IGP) Partnership
SZ2 is composed of Samuel Zell and twenty trusts created for the
benefit of Samuel Zell or his family. The trustees of the twenty
trusts are Roger S. Baskes, Rochelle Zell or Arthur A. Greenberg.
Roger S. Baskes and Rochelle Zell are both private investors and
citizens of the United States of America. Certain information
concerning Messrs. Zell and Greenberg is set forth in Appendix A.
The address for SZ2 and Messrs. Zell and Greenberg is Two N.
Riverside Plaza, Chicago, Illinois 60606. The address for Mr.
Baskes is 980 N. Michigan Avenue, Chicago, Illinois 60611. The
address for Mrs. Zell is 1555 N. Astor Street, Chicago, Illinois
60611.
Anda Partnership
Anda Partnership is composed of ten trusts created for the
benefit of Ann Lurie and her family. Ann Lurie and Mark Slezak
are the co-trustees of the ten trusts. Mrs. Lurie is a private
investor and a citizen of the United States of America. Mr.
Slezak is a Vice President and Treasurer of Lurie Investments,
Inc. and a citizen of the United States of America. The address
for Anda Partnership, Mrs. Lurie and Mr. Slezak is Two N.
Riverside Plaza, Chicago, Illinois 60606.
Samuel Zell
Certain information concerning Mr. Zell is set forth in Appendix
A.
(d) and (e) None of the Reporting Persons, nor, to the best knowledge of the
Reporting Persons, any of the persons listed above or in Appendix
A attached hereto, 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 activities subject to federal or
state securities laws or finding any violation with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate amount of funds used by Zell/Chilmark in acquiring
11,756,597 shares of Common Stock and 629,117 warrants to purchase Common Stock
("Warrants") reported for such Reporting Person was $67,608,710. All funds used
in acquiring the Common Stock and Warrants were obtained from partnership
capital contributions from general and limited partners. The Warrants and
8,272,276 shares of Common Stock were obtained pursuant to a restructuring plan
which included a merger of a corporation wholly owned by Zell/Chilmark with the
Issuer on January 11, 1993 and related creditor sale on January 12, 1993
("Restructuring Plan"), and 3,484,321 shares were purchased by Zell/Chilmark
from the Issuer on March 11, 1993.
On July 20, 1993, a corporation wholly owned by Zell/Chilmark, ZC/Radio
Acquisition, Inc. ("Acquisition Corp."), purchased a radio station, KAZY (FM),
Denver, Colorado ("KAZY"), for $5.5 million plus acquisition expenses of
$33,395.79. Zell/Chilmark and the Issuer had previously agreed that the Issuer
would acquire KAZY from Zell/Chilmark in exchange for shares of Common Stock
having an aggregate value, based upon the value of $5.74 per share established
at the time of the Restructuring, equal to Zell/Chilmark's cost for the station
plus related acquisition expenses. On July 20, 1993, Acquisition Corp. was
merged into a wholly owned subsidiary of the Issuer in exchange for
Zell/Chilmark's receipt of 964,006 shares of Common Stock. All funds used by
Acquisition Corp. in acquiring KAZY were obtained by Acquisition Corp. from
Zell/Chilmark. Zell/Chilmark received the funds from partnership contributions
from general and limited partners.
Page 9 of 47
<PAGE> 10
On June 11, 1996, Zell/Chilmark exercised the Warrants for $5.2 million
with funds from partnership contributions from general and limited partners.
On April 9, 1997, SZ2 purchased in open market transactions at $2.13 per
warrant 271,000 warrants to purchase 55,155 shares of Common Stock at $28.00 per
share and 25,000 warrants at $2.00 per warrant to purchase 5,088 shares of
Common Stock at $28.00 per share for total consideration of approximately
$627,000. The source of funds for the purchase by SZ2 was the working capital
of SZ2.
On May 16, 1997, Samstock and Anda purchased 437,858 shares of Common
Stock and 235,770 shares of Common Stock, respectively, at $29.69 per share from
the Issuer for total consideration of $13,000,004.02 and $7,000,011.30,
respectively. The source of funds for the purchase by Samstock was a capital
contribution from the member of Samstock, who in turn had received capital
contributions from its members. The source of funds for the purchase by Anda
was the working capital of Anda.
On September 30, 1997, Samuel Zell purchased 3,256 shares of Common
Stock at $30.71 per share from the Issuer pursuant to the Issuer's 1997
Non-Employee Director Stock Purchase Plan (the "Stock Purchase Plan"). On March
31, 1998, Samuel Zell purchased 2,283 shares of Common Stock at $43.80 per share
from the Issuer pursuant to the Stock Purchase Plan. The aggregate amount of
funds used by Mr. Zell in making each such purchase, approximately $100,000 with
respect to each purchase, was from the personal funds of Mr. Zell. All of these
shares were purchased at a per share price equal to 85% of the market value of
the Issuer's Common Stock on the first day of the applicable purchase period.
Item 4. Purpose of Transaction.
Zell/Chilmark acquired the Common Stock and Warrants referenced above to
facilitate the consummation of the Restructuring Plan and for the purpose of
making a significant long-term equity investment in, and obtaining control over,
the Issuer, and to accomplish a subsequent refinancing of the Issuer's debt.
Since the Issuer owns and operates radio stations, it is governed by the
Federal Communications Committee ("FCC"). The rules and regulations of the FCC
state that the FCC must approve the potential acquiror of a controlling interest
in the voting stock of a company under its governance. Since it was the intent
of Zell/Chilmark to gain control of the Issuer, FCC approval ("FCC Approval")
was required. The Restructuring Plan was approved by the shareholders of the
Issuer on January 8, 1993 and was consummated on January 11 and 12, 1993. At
that time the transfer of control to Zell/Chilmark had not yet been approved by
the FCC and therefore the shares acquired by Zell/Chilmark or issuable upon
exercise of Warrants acquired by Zell/Chilmark were non-voting Class B common
stock ("Class B Common"). The Class B Common was to convert to Common Stock at
the time of the FCC's approval of Zell/Chilmark as the acquiror of a controlling
interest in the Issuer. FCC approval was received on April 23, 1993. Pursuant
to the Restructuring Plan, Zell/Chilmark designated two of the five directors of
the Issuer at the time of the Restructuring and, upon receipt of FCC Approval,
the board of directors of the Issuer was expanded to nine persons and
Zell/Chilmark designated three additional directors in order to assure it
majority representation. The Issuer, with Zell/Chilmark's support, proposed an
amendment to its By-laws which was approved by vote at the Issuer's Annual
Meeting of Stockholders in May 1993, which amendment eliminated provisions for a
classified board.
Samstock, Anda and Mr. Zell purchased the shares of Common Stock
reported herein for investment purposes. SZ2 purchased the warrants to purchase
Common Stock reported herein for investment purposes.
As of October 8, 1998, each of Zell/Chilmark, Samstock, SZ2 and Samuel
Zell executed a Voting Agreement (the "Voting Agreement") with Clear Channel
Communications, Inc., a Texas corporation ("Clear Channel") pursuant to which
each such Reporting Person agreed, among other things, to vote shares of Common
Stock such entity beneficially owns (1) in favor of the Agreement and Plan of
Merger dated as of October 8, 1998 (the "Merger Agreement") among the Issuer,
Clear Channel and CCU Merger Sub, Inc., a Delaware Corporation ("CCU Merger
Sub") whereby CCU Merger Sub
Page 10 of 47
<PAGE> 11
would be merged with and into the Issuer with the Issuer surviving as a
wholly-owned subsidiary of Clear Channel (the "Merger") and (2) generally
against any action or agreement that is reasonably likely to result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation of the Company under the Voting Agreement or the Merger Agreement.
The Voting Agreements also contain certain restrictions on the ability of such
Reporting Persons to dispose of their shares of Common Stock during the period
commencing 57 trading days prior to the Estimated Closing Date (as defined in
the Voting Agreement). On October 8, 1998 each of Zell/Chilmark, Samstock, SZ2
and Samuel Zell executed a Registration Rights Agreement (the "Registration
Rights Agreement") with Clear Channel pursuant to which Clear Channel agreed to
give such Reporting Persons certain shelf registration and demand registration
rights with respect to the shares of common stock of Clear Channel acquired by
such Reporting Persons pursuant to the Merger. The summary contained in this
Amendment to Schedule 13D of certain provisions of the Voting Agreement and the
Registration Rights Agreement is qualified in its entirety by reference to the
Voting Agreement and the Registration Rights Agreement filed as Exhibit Nos. 12
and 13, respectively, to this Amendment and incorporated herein by reference.
None of the Reporting Persons has any current intention to acquire any
additional securities of the Issuer (except as described in this Item 4) or to
dispose of any securities of the Issuer. Each of Zell/Chilmark, Samstock, SZ2
and Samuel Zell intends, however, to continue to review its investment in the
Common Stock and, from time to time depending upon certain factors, including,
without limitation, the availability and prices of shares of Common Stock
and/or warrants on the open market, may determine to acquire through open
market purchases or otherwise additional shares of Common Stock and/or warrants
(in addition to those that the Reporting Persons may acquire as described above
in this Item 4 or by exercising options described in Item 5) or may determine
to sell Common Stock or warrants through open market transactions or otherwise,
to the extent permitted by law and the terms of the above-described agreements.
Except as stated above, none of the Reporting Persons has any plans or
proposals of the type referred to in clauses (a) through (j) of Item 4 of
Schedule 13D.
The information set forth in Item 6 below is incorporated herein by
reference.
Item 5. Interest in Securities of the Issuer.
(a) To the best knowledge of the Reporting Persons, there are 50,958,860 "1"
shares of Common Stock issued and outstanding as of the date hereof. As
of the date hereof, the Reporting Persons may be deemed to be the
beneficial owner of the following which represent the following
percentages of the shares of Common Stock outstanding:
REPORTING PERSON: NUMBER OF SHARES: PERCENTAGE OF OUTSTANDING:
- ----------------- ----------------- --------------------------
Zell/Chilmark 13,349,720 26.2%
Samstock 437,858* 3.3%*
SZ2 60,243** 0.5%**
Anda -0- 0.0%
Samuel Zell 9,289*** 0.0%***
- -------------------------
1 From Form 10Q for the quarter ended June 30, 1998.
Page 11 of 47
<PAGE> 12
* These shares of Common Stock are pledged to Chase Manhattan Bank.
See Item 6 for a description of the transaction.
** Assumes the exercise of 296,000 warrants to purchase 60,243 shares
of Common Stock at $28.00 per share.
*** Includes vested options currently exercisable to purchase 3,750
shares of Common Stock but does not include 2,176 Common Stock
units which will convert to shares of Common Stock at the time Mr.
Zell ceases to be a director of the Issuer.
Additionally, those persons listed in Item 2 above beneficially own the
following number of shares of Common Stock:
1) Sheli Z. Rosenberg is the beneficial owner of (i) 12,829 shares
of Common Stock; (ii) options to purchase 20,000 shares of
Common Stock; and 2,176 Common Stock units.
2) Samuel Zell may be deemed to be the beneficial owner of 5,000
shares of Common Stock which are beneficially owned by the
Rochelle Zell Revocable Trust. Mr. Zell is a co-trustee of
such trust and disclaims beneficial ownership of the 5,000
shares of Common Stock.
3) Rochelle Zell may be deemed to be the beneficial owner of 5,000
shares of Common Stock which are beneficially owned by the
Rochelle Zell Revocable Trust. Mrs. Zell is the beneficiary
and co-trustee of such trust.
4) Roger S. Baskes may be deemed to be the beneficial owner of
5,000 shares beneficially owned by the Rochelle Zell Revocable
Trust. Mr. Baskes is a co-trustee of such trust and disclaims
beneficial ownership of the 5,000 shares of Common Stock.
Additionally, the RSB Properties Trust E is the beneficial
owner of 5,000 shares of Common Stock. Members of Mr. Baskes'
family are the beneficiaries of such trust. Mr. Baskes
disclaims beneficial ownership of the 5,000 shares.
5) Rod F. Dammeyer is the beneficial owner of (i) 2,283 shares of
Common Stock; (ii) options to purchase 17,000 shares of Common
Stock; and 5,916 Common Stock units.
(b) Zell/Chilmark, Samuel Zell, Sheli Z. Rosenberg, Rod F. Dammeyer and
David M. Schulte share the power to vote and to direct the vote of and
share the power to dispose or to direct the disposition of the
13,349,720 shares of Common Stock beneficially owned by Zell/Chilmark.
Samstock, Arthur A. Greenberg, Sheli Z. Rosenberg and Samuel Zell share
the power to vote and to direct the vote of and share the power to
dispose and to direct the disposition of the 437,858 shares of Common
Stock beneficially owned by Samstock.
SZ2, Samuel Zell, Arthur A. Greenberg, Roger S. Baskes and Rochelle Zell
share the power to vote or to direct the vote of the 60,243 shares of
Common Stock beneficially owned by SZ2 (assuming the exercise of the
296,000 warrants to purchase 60,243 shares of Common Stock beneficially
owned by SZ2) and share the power to dispose or to direct the
disposition of the 296,000 warrants to purchase 60,243 shares of Common
Stock or the 60,243 shares of Common Stock beneficially owned by SZ2
(assuming the exercise of the 296,000 warrants to purchase 60,243 shares
of Common Stock).
Page 12 of 47
<PAGE> 13
The power to vote the shares of Common Stock beneficially owned by
Zell/Chilmark, Samstock, SZ2 and Samuel Zell is limited under the terms
of the Voting Agreements described in Item 2 above. The power to
dispose of the shares of Common Stock beneficially owned by
Zell/Chilmark, Samstock, SZ2 and Samuel Zell is limited under the terms
of the Voting Agreements described in Item 2 above.
The voting arrangements for the Common Stock reported for those persons
identified above are as follows:
1) Sheli Z. Rosenberg has the sole power to vote or to direct the
vote of and the sole power to dispose or to direct the
disposition of the 12,829 shares of Common Stock; the 20,000
shares of Common Stock assuming the exercise of the options to
purchase 20,000 shares; and the 2,176 shares of Common Stock
units assuming the conversion of the 2,176 Common Stock units.
2) Samuel Zell, Rochelle Zell and Roger S. Baskes share the power
to vote or to direct the vote of and share the power to dispose
or to direct the disposition of the 5,000 shares of Common
Stock beneficially owned by the Rochelle Zell Revocable Trust.
3) Roger S. Baskes, as the beneficiary of the RSB Properties Trust
E, has no power to vote or to direct the votes of and no power
to dispose or to direct the disposition of the 5,000 shares of
Common Stock beneficially owned by the RSB Properties Trust E.
4) Rod F. Dammeyer has the sole power to vote or to direct the
vote of and the sole power to dispose or to direct the
disposition of 2,283 shares of Common Stock; the 13,000 shares
of Common Stock assuming the exercise of the options to
purchase 13,000 shares of Common Stock and of 5,916 shares of
Common Stock assuming the conversion of 5,916 Common Stock
units.
(c) During the last sixty days, the Reporting Persons effected the following
transactions:
(i) Anda sold in open market transactions the shares of Common
Stock set forth in Appendix B on the respective dates at the
respective prices set forth in Appendix B.
(d) and (e) Not applicable.
Item 6. Contracts, Arrangement, Understandings or
Relationships with Respect to Securities of the Issuer.
On December 3, 1992, the Issuer entered into a time brokerage agreement
with respect to radio station KAZY (FM), Denver, Colorado. On that same date,
Zell/Chilmark agreed to acquire the station, subject to the time brokerage
agreement, from parties not related to Zell/Chilmark or the Issuer for a
purchase price of $5,500,000. This agreement by Zell/Chilmark to acquire the
station (which is subject to various conditions, including approval of the FCC)
was entered into in contemplation of the Restructuring and the subsequent resale
of the station by Zell/Chilmark to the Issuer in exchange for shares of the
Issuer's Common Stock having a value, based upon the value of $5.74 per share
established at the time of the Restructuring, equal to Zell/Chilmark's cost for
the station plus related acquisition expenses.
Page 13 of 47
<PAGE> 14
Under the terms of the Restructuring, if FCC Approval is reversed by the
FCC or a court, the Issuer is obligated to use its best efforts (including
granting registration rights at the Issuer's expense but excluding entering into
a restructuring) to assist Zell/Chilmark in a sale of its shares of Common Stock
under such circumstances.
On or about September 16, 1997, all of the 437,858 shares of Common
Stock beneficially owned by Samstock were pledged to Chase Manhattan Bank as
collateral for a revolving line of credit.
In connection with Mr. Zell's service as a director of the Issuer,
pursuant to the Issuer's Non-Employee Directors Stock Plan and in lieu of his
annual cash retainer (i) on July 1, 1997 he was awarded 1,345 stock units which
were equal in value to $50,000 based upon the fair market value of an equal
number of shares of the Issuer's Common Stock on the date of the grant and (ii)
on July 1, 1998 he was awarded 831 stock units which were equal in value to
$50,000 based upon the fair market value of an equal number of shares of the
Issuer's Common Stock on the date of the grant. The stock units are convertible
into shares of Common Stock at the earlier of the time Mr. Zell ceases his
service on the Board of Directors of the Issuer and/or other conditions
established by the director prior to the award date. Pursuant to the Issuer's
1997 Non-Employee Directors Stock Plan (i) on April 28, 1997 Mr. Zell was
awarded 5,000 non-qualified stock options having an exercise price of $27.875
per share and (ii) on April 2, 1998 Mr. Zell was awarded 5,000 non-qualified
stock options having an exercise price of $60.66 per share. These options vested
25% upon grant and vest 25% annually thereafter. To date, 3,750 of these
options have vested. See Item 2 regarding Mr. Zell's purchase of a total of
5,539 shares of Common Stock under the Issuer's Stock Purchase Plan.
On October 8, 1998, the Issuer, Clear Channel and CCU Merger Sub,
entered into the Merger Agreement which provides, among other things, that CCU
Merger Sub will be merged with and into the Issuer with the Issuer surviving as
a wholly-owned subsidiary of Clear Channel . In connection with the Merger,
each share of Common Stock will be converted into a number (the "Conversion
Number") of duly authorized, validly issued and nonassessable shares of Clear
Channel common Stock, par value $0.10 per share (the "Parent Common Stock"), as
follows: (i) if the Average Closing Price (as defined in the Merger Agreement)
is less than or equal to $42.86, the Conversion Number will be 1.4 shares of
Parent Common Stock, (ii) if the Average Closing Price is greater than $42.86
and less than or equal to $44.44, the Conversion Number will be that number of
shares of Parent Common Stock with a value of $60.00, when measured at the
Average Closing Price, (iii) if the Average Closing Price is greater than $44.44
and less than $50.00, the Conversion Number will be 1.35 shares of Parent Common
Stock; and (iv) if the Average Closing Price is greater than or equal to $50.00,
the Conversion Number will be the quotient obtained by dividing (A) the sum of
(x) $67.50 plus (y) the result obtained by multiplying $.675 time the excess of
the Average Closing Price over $50.00 by (B) the Average Closing Price. The
summary contained in this Amendment to Schedule 13D of certain provisions of the
Merger Agreement is qualified in its entirety by reference to the Merger
Agreement filed as Exhibit No. 2 to the Issuer's Current Report on Form 8-K,
dated October 9, 1998, and incorporated herein by reference.
Also See Item 4 regarding (i) the Voting Agreements entered into between
Clear Channel and each of Zell/Chilmark, Samstock, SZ2 and Samuel Zell, and (ii)
the Registration Rights Agreement among Clear Channel, Zell/Chilmark, Samstock,
SZ2 and Samuel Zell.
Page 14 of 47
<PAGE> 15
Item 7. Material to be Filed as Exhibits.
Exhibit Number Description
- -------------- -----------
Exhibit 1 Restructuring Agreement (incorporated herein by reference to
Appendix A of the Issuer's Proxy Statement-Prospectus dated
December 1, 1992 included in its Registration Statement on Form
S-4, file No. 33-53612).
Exhibit 2 Amended Agreement of Merger (incorporated herein by reference to
Appendix B of the Issuer's Proxy Statement-Prospectus dated
December 1, 1992 included in its Registration Statement on Form
S-4, file No. 33-53612).
Exhibit 3 Agreement of Understanding (incorporated herein by reference to
Appendix C of the Issuer's Proxy Statement-Prospectus dated
December 1, 1992 included in its Registration Statement on Form
S-4, file No. 33-53612).
Exhibit 4 Jacor Shareholders Agreement, dated February 12, 1996, between
Citicasters and Zell/Chilmark.*
Exhibit 5 Stock Purchase Agreement (incorporated herein by reference to
Exhibit 1.2 of the Issuer's form 8-K dated as of May 15, 1997
and filed with the Commission on May 19, 1997).
Exhibit 6 Underwriting Agreement (incorporated herein by reference to
Exhibit 1.1 of the Issuer's form 8-K dated as of May 15, 1997
and filed with the Commission on May 19, 1997).
Exhibit 7 Letter of Direction, dated May 20, 1997, from Equity Group
Investments, Inc. to the Issuer.**
Exhibit 8 Lock-Up Agreement for Samuel Zell dated May 12, 1997.**
Exhibit 9 Lock-Up Agreement for Zell/Chilmark Fund, L.P. dated May 12,
1997.**
Exhibit 10 Joint Filing Agreement, dated May 16, 1997, among Zell/Chilmark,
Samstock, SZ2 and Anda.**
Exhibit 11 Agreement and Plan of Merger dated as of October 8, 1998 among
the Issuer, Clear Channel and CCU Merger Sub, Inc. (incorporated
herein by reference to Exhibit 2 of the Issuer's Current Report
on Form 8-K dated October 9, 1998 and filed with the Commission
October 9, 1998).
Exhibit 12 Form of Voting Agreement, dated as of October 8, 1998, between
Clear Channel and each of Zell/Chilmark, Samstock, SZ2 and
Samuel Zell.
Exhibit 13 Registration Rights Agreement, dated as of October 8, 1998,
among Clear Channel, Zell/Chilmark, Samstock, SZ2 and Samuel
Zell.
Exhibit 14 Amended and Restated Joint Filing Agreement, dated October 16,
1998, among Zell/Chilmark, Samstock, SZ2, Anda and Samuel Zell.
Page 15 of 47
<PAGE> 16
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
<TABLE>
<CAPTION>
ZELL/CHILMARK FUND, L.P. SAMSTOCK, L.L.C.
<S> <C>
By: ZC Limited Partnership, general partner By: SZ Investments, L.L.C., its sole member
By: ZC Partnership, general partner By: Zell General Partnership, Inc., its managing member
By: ZC, Inc., a partner By: /s/ Samuel Zell
------------------------------
Name: Samuel Zell, President
By: /s/ Samuel Zell
---------------------------------
Name: Samuel Zell, President
SZ2 (IGP) PARTNERSHIP ANDA PARTNERSHIP
By: Ann Only Trust, a partner
By: /s/ Samuel Zell By: /s/ Mark Slezak
--------------------------------- ---------------------------------
Name: Samuel Zell, Partner Name: Mark Slezak, Co-Trustee
</TABLE>
/s/ Samuel Zell
- -------------------------------------
SAMUEL ZELL
Page 16 of 47
<PAGE> 17
<TABLE>
<CAPTION>
EXHIBIT INDEX
-------------
Exhibit Page
Number Description Number
- ------ ----------- ------
<S> <C> <C>
1 Restructuring Agreement (incorporated herein by reference
to Appendix A of the Issuer's Proxy Statement-Prospectus
dated December 1, 1992 included in its Registration Statement
on Form S-4, file No. 33-53612). --
2 Amended Agreement of Merger (incorporated herein by reference
to Appendix B of the Issuer's Proxy Statement-Prospectus
dated December 1, 1992 included in its Registration Statement
on Form S-4, file No. 33-53612). --
3 Agreement of Understanding incorporated herein by reference
to Appendix C of the Issuer's Proxy Statement-Prospectus
dated December 1, 1992 included in its Registration Statement
on Form S-4, file No. 33-53612). --
4 Jacor Shareholders Agreement, dated February 12, 1996, between
Citicasters and Zell/Chilmark.* --
5 Stock Purchase Agreement (incorporated herein by reference to
Exhibit 1.2 of the Issuer's form 8-K dated as of May 15, 1997
and filed with the Commission on May 19, 1997). --
6 Underwriting Agreement (incorporated herein by reference to
Exhibit 1.1 of the Issuer's form 8-K dated as of May 15, 1997
and filed with the Commission on May 19, 1997). --
7 Letter of Direction, dated May 20, 1997, from Equity Group
Investments, Inc. to the Issuer.** --
8 Lock-Up Agreement for Samuel Zell dated May 12, 1997.** --
9 Lock-Up Agreement for Zell/Chilmark Fund, L.P. dated May 12,
1997.** --
10 Joint Filing Agreement, dated May 16, 1997, among
Zell/Chilmark, Samstock, SZ2 and Anda.** --
11 Agreement and Plan of Merger dated as of October 8, 1998
among the Issuer, Clear Channel and CCU Merger Sub, Inc.
(incorporated herein by reference to Exhibit 2 of the
Issuer's Current Report on Form 8-K dated October 9, 1998 and
filed with the Commission October 9, 1998). --
12 Form of Voting Agreement, dated as of October 8, 1998, between
Clear Channel and each of Zell/Chilmark, Samstock, SZ2 and Samuel
Zell. 22
</TABLE>
Page 17 of 47
<PAGE> 18
<TABLE>
<S> <C> <C>
13 Registration Rights Agreement, dated as of October 8, 1998,
among Clear Channel, Zell/Chilmark, Samstock, SZ2 and
Samuel Zell. 30
14 Amended and Restated Joint Filing Agreement, dated
October 16, 1998, among Zell/Chilmark, Samstock, SZ2, Anda
and Samuel Zell. 46
</TABLE>
* Previously filed with as Exhibit No. 1 to Amendment No. 2 to this
Schedule 13D which was dated February 20, 1996.
*** The indicated documents were previously filed as Exhibit Nos. 2 through
5, respectively, to Amendment No. 3 to this Schedule 13D which was dated
May 28, 1997.
Page 18 of 47
<PAGE> 19
APPENDIX A
Information concerning Executive Officers, Directors and Major Shareholders of
ZC, Inc. and CZ, Inc. All the individuals listed below are United States
citizens.
ZC, Inc.
--------
Directors and Executive Officers
--------------------------------
<TABLE>
<CAPTION>
Name and Business Address Position with ZC, Inc., Present Principal Occupation
- ------------------------- or Employment
----------------------------------------------------
<S> <C>
Samuel Zell Sole director and President of ZC, Inc. Mr. Zell is
Two N. Riverside Plaza Chairman of the Board of Equity Group Investments,
Chicago, IL 60606 Inc., a privately owned Investment and management
company whose address is Two N. Riverside Plaza,
Chicago, IL 60606. Mr. Zell is also Chairman of the
Board of the Issuer.
Sheli Z. Rosenberg Vice President of ZC, Inc. Mrs. Rosenberg is
Two N. Riverside Plaza President and Chief Executive Officer of Equity Group
Chicago, IL 60606 Investments, Inc. Mrs. Rosenberg is also a director
and Vice Chairperson of the Board of the Issuer.
Equity Group Investments,Inc. is located at Two N.
Riverside Plaza, Chicago, IL 60606.
Arthur A. Greenberg Vice President and Treasurer of ZC, Inc.
Two N. Riverside Plaza Mr. Greenberg is the principal of the accounting firm
Chicago, IL 60606 of Arthur A. Greenberg, CPA; Arthur A. Greenberg, CPA
is located at Two N. Riverside Plaza, Chicago, IL
60606.
Rod F. Dammeyer Vice President of ZC, Inc. Mr. Dammeyer is a
Two N. Riverside Plaza Managing Director of EGI Corporate Investments, a
Chicago, IL 60606 division of Equity Group Investments, Inc.
Mr. Dammeyer is also a director of the Issuer.
Donald J. Liebentritt Vice President of ZC, Inc. Mr. Liebentritt is a
Two N. Riverside Plaza principal in the law firm of Rosenberg & Liebentritt,
Chicago, IL 60606 P.C. and Executive Vice and General Counsel of Equity
Group Investments, Inc. Rosenberg & Liebentritt P.C. is
located at Two N. Riverside Plaza, Chicago, IL
60606.
</TABLE>
Page 19 of 47
<PAGE> 20
MAJOR SHAREHOLDERS
------------------
Samuel Zell as trustee of the Samuel Zell Revocable Trust dated January 17, 1990
(the "SZ Trust") is the sole shareholder of ZC, Inc. Mr. Zell is also the
beneficiary of the SZ Trust.
CZ, INC.
--------
Directors and Executive Officers
--------------------------------
<TABLE>
<CAPTION>
Name and Business Address Position with ZC, Inc., Present Principal Occupation
- ------------------------- or Employment
----------------------------------------------------
<S> <C>
David M. Schulte Sole director, President, Secretary and Treasurer of
875 N. Michigan Avenue CZ Inc. Mr. Schulte is the managing general partner
Chicago, IL 60611 of Chilmark Partners, L.P. Chilmark Partners is a
merchant banking firm that specializes in providing
corporate and investment banking advice to companies
on the restructuring of their businesses in
conjunction with recapitalizations. Chilmark
Partners is located at 875 N. Michigan Avenue,
Chicago, IL 60611.
Joel S. Friedland Vice President and Assistant Secretary of CZ Inc.
875 N. Michigan Avenue Mr. Friedland is a general partner of Chilmark
Chicago, IL 60611 Partners, L.P.
Matthew Rosenberg Vice President and Assistant Secretary of CZ Inc.
875 N. Michigan Avenue Mr. Rosenberg is a general partner of Chilmark
Chicago, IL 60611 Partners, L.P.
</TABLE>
MAJOR SHAREHOLDER
-----------------
David M. Schulte is the sole shareholder of CZ Inc.
Page 20 of 47
<PAGE> 21
APPENDIX B
----------
SALES OF SHARES BY ANDA PARTNERSHIP
<TABLE>
<CAPTION>
=============================================================================
Trade Dollar
Date Security Amount Share Price Quantity
---- -------- ------ ----------- --------
=============================================================================
<S> <C> <C> <C> <C>
07-21-98 JACOR $ 2,277,990.17 $63.684377 35,770
- -----------------------------------------------------------------------------
07-22-98 JACOR $ 2,050,870.13 $63.103696 32,500
- -----------------------------------------------------------------------------
07-23-98 JACOR $ 760,755.89 $60.860471 12,500
- -----------------------------------------------------------------------------
07-24-98 JACOR $ 299,990.00 $59.998000 5,000
- -----------------------------------------------------------------------------
07-28-98 JACOR $ 178,869.03 $59.623010 3,000
- -----------------------------------------------------------------------------
07-29-98 JACOR $ 299,990.00 $59.998000 5,000
- -----------------------------------------------------------------------------
07-30-98 JACOR $ 273,490.98 $60.775773 4,500
- -----------------------------------------------------------------------------
08-06-98 JACOR $ 1,598,384.21 $58.123062 27,500
- -----------------------------------------------------------------------------
08-07-98 JACOR $ 594,980.16 $59.498016 10,000
- -----------------------------------------------------------------------------
08-12-98 JACOR $ 754,974.83 $60.397986 12,500
- -----------------------------------------------------------------------------
08-19-98 JACOR $ 746,693.85 $59.735508 12,500
- -----------------------------------------------------------------------------
08-21-98 JACOR $ 284,990.50 $56.998100 5,000
- -----------------------------------------------------------------------------
08-24-98 JACOR $ 1,185,586.47 $59.279324 20,000
- -----------------------------------------------------------------------------
08-25-98 JACOR $ 1,214,959.50 $60.747975 20,000
- -----------------------------------------------------------------------------
08-26-98 JACOR $ 302,802.40 $60.560480 5,000
- -----------------------------------------------------------------------------
08-27-98 JACOR $ 1,494,795.17 $59.791807 25,000
- -----------------------------------------------------------------------------
-------------- -------
TOTAL $14,320,123.29 235,770
============== =======
- -----------------------------------------------------------------------------
</TABLE>
Page 21 of 47
<PAGE> 1
Exhibit 12
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of October 8, 1998, is
entered into by and among Clear Channel Communications, Inc., a Texas
corporation ("Parent"), and the other party listed on the signature page hereof
(the "Stockholder").
WHEREAS, Parent, CCU Merger Sub, Inc. ("Merger Sub") and Jacor
Communications, Inc. (the "Company"), have entered into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement"), pursuant to which the
parties thereto have agreed, upon the terms and subject to the conditions set
forth therein, to merge Merger Sub with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder is the owner of the
number of shares (the "Shares") of common stock, par value $0.0l per share, of
the Company (the "Company Common Stock") set forth opposite such Stockholder's
name on Schedule I attached hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
is willing to agree, to the matters set forth herein. Except as specified
herein, terms defined in the Merger Agreement are used herein as defined
therein.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth below, the parties hereto agree as follows:
1. Voting of Shares.
1.1. Voting Agreement. The Stockholder hereby agrees to vote (or
cause to be voted) all of the Shares (and any and all securities issued or
issuable in respect thereof) which such Stockholder is entitled to vote (or to
provide his written consent thereto), at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment or adjournments thereof,
or pursuant to any consent in lieu of a meeting or otherwise:
(i) in favor of the Merger and the approval and adoption of the
terms contemplated by the Merger Agreement and any actions required in
furtherance thereof;
(ii) against any action or agreement that is reasonably likely to
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation of the Company under this Agreement or the
Merger Agreement; and
(iii) except for all such actions which may be permitted to the
Company under Section 5.1 of the Merger Agreement, against (A) any extraordinary
corporate transaction, such as a merger, rights offering, reorganization,
recapitalization or liquidation involving the Company or any of its subsidiaries
other than the Merger, (B) a sale or transfer of a material amount
Page 22 of 47
<PAGE> 2
Exhibit 12
of assets of the Company or any of its material subsidiaries or the issuance of
any securities of the Company or any subsidiary, (C) any change in the Board of
Directors of the Company other than in connection with an annual meeting of the
shareholders of the Company with respect to the slate of directors proposed by
the incumbent Board of Directors of the Company (in which case they agree to
vote for the slate proposed by the incumbent Board) or (D) any action that is
reasonably likely to materially impede, interfere with, delay, postpone or
adversely affect in any material respect the Merger and the transaction
contemplated by the Merger Agreement.
2. Representations and Warranties of Stockholder. The Stockholder
represents and warrants to Parent as follows in each case as of the date
hereof:
2.1. Binding Agreement. The Stockholder has the capacity to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The Stockholder has duly and validly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding obligation
of the Stockholder, enforceable against the Stockholder in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
2.2. No Conflict. Neither the execution and delivery of this
Agreement, nor the compliance with any of the provisions hereof in each case by
the Stockholder (a) require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) with, or notification to,
any governmental entity, (b) result in a default (or an event which, with notice
or lapse of time or both, would become a default) or give rise to any right of
termination by any third party, cancellation, amendment or acceleration under
any material contract, agreement, instrument, commitment, arrangement or
understanding, or result in the creation of a security interest, lien, charge,
encumbrance, equity or claim with respect to any of the Shares, (c) require any
material consent, authorization or approval of any person other than a
governmental entity which has not been obtained, or (d) violate or conflict with
any order, writ, injunction, decree or law applicable to the Stockholder or the
Shares.
2.3. Ownership of Shares. Except as set forth in Schedule II and
except as may be provided in the organizational documents, if any, of the
Stockholder, the Stockholder is the record and beneficial owner of the Shares
free and clear of any security interests, liens, charges, encumbrances, options
or restriction on the right to vote the Shares. The Stockholder holds exclusive
power to vote the Shares, subject to the limitations set forth in Section 1 of
this Agreement. The Shares represent all of the shares of capital stock of the
Company beneficially owned by Stockholder.
3. Representations and Warranties of Parent. Parent represents and
warrants to the Stockholder as follows in each case as of the date hereof:
3.1. Binding Agreement. Parent is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Texas and
has full corporate
Page 23 of 47
<PAGE> 3
Exhibit 12
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the Merger Agreement by Parent and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
Board of Directors of Parent, and except for the approval of the issuance of
shares of Parent Common Stock in the Merger by holders of a majority of the
outstanding shares of Parent Common Stock actually present and voting at the
Parent Special Meeting, no other corporate proceedings on the part of Parent are
necessary to authorize the execution, delivery and performance of this Agreement
and the Merger Agreement by Parent and the consummation of the transactions
contemplated thereby. Parent has duly and validly executed this Agreement and
this Agreement constitutes a legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
3.2. No Conflict. Neither the execution and delivery of this
Agreement, the consummation by Parent of the transactions contemplated hereby,
nor the compliance by Parent with any of the provisions hereof will (a) conflict
with or result in a breach of any provision of its Articles of Incorporation or
By-laws, (b) require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the Exchange Act)
with, or notification to, any governmental entity, (c) result in a default (or
an event which, with notice or lapse of time or both, would become a default) or
give rise to any right of termination by any third party, cancellation,
amendment or acceleration under any contract, agreement, instrument, commitment,
arrangement or understanding, (d) require any material consent, authorization or
approval of any person other than a governmental entity, or (e) violate or
conflict with any order, writ, injunction, decree or law applicable to Parent.
4. Transfer and Other Restrictions. For so long as the Merger Agreement
is in effect:
4.1. Certain Prohibited Transfers. The Stockholder agrees not to:
(a) sell, transfer, assign (except as part of a bona fide pledge) or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment or other
disposition of, the Shares or any interest contained therein (except as part of
a bona fide pledge), during the period commencing 57 trading days prior to the
Estimated Closing Date(a) sell, transfer, assign (except as part of a bona fide
pledge) or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, assignment or
other disposition of, the Shares or any interest contained therein (except as
part of a bona fide pledge), during the period commencing 57 trading days prior
to the Estimated Closing Date and ending on the second trading day prior to the
Estimated Closing Date (the "Restriction Period"). For purpose of this
Agreement, the term "Estimated Closing Date" shall mean, a date specified in a
notice delivered by Parent to the Stockholder, which date is to be determined in
good faith by the General Counsel of the Parent following consultation with the
General Counsel of the Company to be the date on which the Merger will be
consummated, and which Estimated Closing Date shall be the later of (i) the sum
of 90 calendar days plus 57 trading days from the date hereof, and (ii) the sum
of 20 calendar days plus 57 trading days following the delivery of such notice.
Page 24 of 47
<PAGE> 4
Exhibit 12
(b) except as contemplated by this Agreement, grant any proxies or power
of attorney or enter into a voting agreement or other arrangement with respect
to the Shares, other than this Agreement; (b) except as contemplated by this
Agreement, grant any proxies or power of attorney or enter into a voting
agreement or other arrangement with respect to the Shares, other than this
Agreement;
(c) deposit the Shares into a voting trust; nor
(d) during the Restriction Period, buy, sell or trade any equity
security of Parent including, without limitation, entering into any put, call,
option, swap, collar or any other derivative transaction which has a similar
economic effect.
Any date selected by the General Counsel of Parent pursuant to Section
4.1(a) as the Estimated Closing Date may be delayed to a later date by the
General Counsel in like manner by notice delivered by the Parent to the
Stockholder at least 20 days prior to the end of the Restriction Period, but any
trading restriction resulting from such extension shall be suspended for a
period of ten trading days before becoming effective.
4.2. Additional Shares. Without limiting the provisions of the Merger
Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of the Company on, of or affecting the Shares or (ii) the Stockholder
shall become the beneficial owner of any additional shares of Company Common
Stock or other securities entitling the holder thereof to vote or give consent
with respect to the matters set forth in Section 1 hereof, then the terms of
this Agreement shall apply to the shares of capital stock or other securities of
the Company held by the Stockholder immediately following the effectiveness of
the events described in clause (i) or the Stockholder becoming the beneficial
owner thereof, as described in clause (ii), as though they were Shares
hereunder. The Stockholder hereby agrees, while this Agreement is in effect, to
promptly notify Parent of the number of any new shares of Company Common Stock
acquired by the Stockholder, if any, after the date hereof.
5. Specific Enforcement. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with the terms hereof or were otherwise breached and
that each party shall be entitled to seek specific performance of the terms
hereof, in addition to any other remedy which may be available at law or in
equity.
6. Termination. Except for Sections 6 and 7 hereof, which shall survive
for the period specified therein, this Agreement shall terminate on the earlier
of (i) the termination of the Merger Agreement, (ii) the agreement of the
parties hereto to terminate this Agreement, (iii) consummation of the Merger and
(iv) the date the Stockholder ceases to own any Shares.6. Termination. Except
for Sections 6 and 7 hereof, which shall survive for the period specified
therein, this Agreement shall terminate on the earlier of (i) the termination of
the Merger Agreement, (ii) the agreement of the parties hereto to terminate this
Agreement, (iii) consummation of the Merger and (iv) the date the Stockholder
ceases to own any Shares.
7. Indemnification. Parent shall, to the fullest extent permitted under
applicable law, indemnify and hold harmless, the Stockholder against any costs
or expenses (including attorneys' fees as provided below), judgments, fines,
losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation by the
Company or any stockholder of the Company asserting any breach by the
Stockholder of any
Page 25 of 47
<PAGE> 5
Exhibit 12
fiduciary duty on his part to the Company or the other stockholders of the
Company by reason of the Stockholder entering into this Agreement, for a period
of six years after the date hereof. In the event the Stockholder seeks
indemnification from Parent for any such claim, action, suit, proceeding or
investigation (whether arising before or after the termination of this
Agreement), (a) Parent shall pay the fees and expenses of one counsel
selected by the Stockholder and reasonably acceptable to Parent to represent
Stockholder in connection therewith promptly after statements therefor are
received, and
(b) Parent and Merger Sub will cooperate in the defense of any such matter;
provided, however, that Parent shall not be liable for any settlement effected
without its written consent (which consent shall not be unreasonably withheld);
provided, further, that in the event that any claim or claims for
indemnification are asserted or made within such six-year period, all rights to
indemnification in respect of any such claim or claims shall continue until the
disposition of any and all such claims.
8. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
business days after the day when mailed by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
If to Parent, to:
Clear Channel Communications, Inc.
200 Concord Plaza
Suite 600
San Antonio, Texas 78216
Attention: Randall Mays
Facsimile No.: (210) 822-2299
with a copy to:
Akin, Gump, Strauss, Hauer & Feld L.L.P.
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201
Attention: Ford Lacy, P.C.
Facsimile No.: (214) 969-4343
If to Stockholder, to the Stockholder at:
2 North Riverside Plaza
Chicago, Illinois 60606
Facsimile No.: (312) 559-1279
Page 26 of 47
<PAGE> 6
Exhibit 12
with a copy to:
Rosenberg & Liebentritt
Two North Riverside Plaza
Suite 1600
Chicago, Illinois 60606
Attention: Alisa M. Singer
Facsimile No.: (312) 454-0335
Page 27 of 47
<PAGE> 7
Exhibit 12
9. Certain Events. The Stockholder agrees not to sell or transfer more
than 2,600,000 Shares to any transferee that is not reasonably believed by the
Stockholder to be a financial investor engaged in the business of investing in
marketable securities, a bank, an insurance company, a pension fund or a person
described in Rule 13d-1(b)(ii) of the Exchange Act (collectively the
InstitutionalInvestors) (it being understood that a leveraged buyout fund with
significant investments in the broadcast industry shall not be deemed to be an
Instituional Investor) unless the Stockholder obtains the agreement of such
transferee to execute an agreement containing the operative provisions of this
Agreement, excluding Sections 2, 4.1(a), 4.1(d), 4.2 and 9.
10. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
11. Consideration. This Agreement is granted in consideration of the
execution and delivery of the Merger Agreement by Parent.
12. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
13. Successors and Assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto. This Agreement will be binding upon, inure to the benefit of
and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns; provided, that
this Agreement shall not be binding upon any transferee of the Shares,
including without limitation any Institutional Investors.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
15. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without giving effect to the provisions thereof relating to conflicts
of law).
16. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
Page 28 of 47
<PAGE> 8
Exhibit 12
17. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
18. Shareholder Capacity. No Stockholder or designee of any Stockholder
who is or becomes during the term hereof a director or officer of the Company
makes any agreement or understanding herein in its capacity as such director or
officer. Each Stockholder signs solely in its capacity as the record holder and
beneficial owner of such Stockholder's Shares and nothing herein shall limit or
affect any actions taken by a Stockholder any designee of any Stockholder in his
or her capacity as an officer or director of the Company.
IN WITNESS WHEREOF, this Agreement haw been duly executed and delivered by
the Stockholder and a duly authorized officer of Parent on the day and year
first written above.
CLEAR CHANNEL COMMUNICATIONS, INC.
By:
---------------------------------
Name: Randall Mays
Title: Chief Financial Officer
[EACH OF ZELL/CHILMARK FUND, L.P., SAMSTOCK,
SZ2 (IGP) PARTNERSHIP
and SAMUEL ZELL]
Page 29 of 47
<PAGE> 1
Exhibit 13
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of October 8, 1998 (this
"Agreement"), among Clear Channel Communications, Inc., a Texas corporation
(the "Issuer"), and the Holders (as defined herein).
WHEREAS, this Agreement is being entered into in connection with the
closing under the Merger Agreement referred to below.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. Terms defined in the Agreement and Plan of
Merger, dated as of October 8, 1998 (the "Merger Agreement"), among the Issuer,
CCU Merger Sub, Inc., a Delaware corporation wholly owned by the Issuer, and
Jacor Communications, Inc., a Delaware corporation (the "Company"), are used
herein as defined therein. In addition, the following terms, as used herein,
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission or any successor
governmental body or agency.
"Common Stock" means the common stock, par value $.10 per share, of the
Issuer.
"Demand Registration" has the meaning ascribed thereto in Section 2.2(a).
"Demand Request" has the meaning ascribed thereto in Section 2.2(a).
"Disadvantageous Condition" has the meaning ascribed thereto in Section
2.4.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means a Person who owns Registrable Securities and is either (i)
an Investor or (ii) a Person that (A) has agreed to be bound by the terms of
this Agreement as if such Person were an Investor and (B) is (x) a general or
limited partner or limited liability company member, as appropriate, of an
Investor that has received Registrable Securities pursuant to the distribution
to such Person of Registrable Securities in accordance with the agreement of
limited or
Page 30 of 47
<PAGE> 2
Exhibit 13
general partnership or limited liability company agreement, as appropriate,
governing the rights of such Persons, (y) an individual that has a direct or
indirect equity interest in a general partner, a limited partner or a limited
liability company member of an Investor and has received Registrable Securities
directly or indirectly from such Investor or (z) any financial institution that
has received Registrable Securities pursuant to a bona fide pledge thereof by
any Holder referred to in the preceding clauses (x) or (y).
"Investor" means any of the following: (i) Zell/Chilmark Fund, L.P., a
Delaware limited partnership, (ii) Samstock, L.L.C., a Delaware limited
liability company, (iii) SZ2 (IGP) Partnership, Illinois general partnership,
and (iv) Samuel Zell.
"Permitted Holder" means each of the Zell Holders' Agent (or one
representative of the Zell Holders that (x) is designated by Zell Holders that
hold a majority of the Registrable Securities proposed to be sold by Zell
Holders in the applicable offering and (y) is reasonably acceptable to the
Issuer).
"Registrable Securities" means Common Stock acquired by the Holders
pursuant to the Merger (and any shares of stock or other securities into which
or for which such Common Stock may hereafter be changed, converted or exchanged
and any other shares or securities issued to Holders of such Common Stock (or
such shares of stock or other securities into which or for which such shares are
so changed, converted or exchanged) upon any reclassification, share
combination, share subdivision, share dividend, share exchange, merger,
consolidation or similar transaction or event) or otherwise. As to any
particular Registrable Securities, such Registrable Securities shall cease to be
Registrable Securities as soon as (i) such Registrable Securities have been sold
or otherwise disposed of pursuant to a registration statement that was filed
with the Commission in accordance with this Agreement and declared effective
under the Securities Act, (ii) such Registrable Securities shall have been
otherwise sold, transferred or disposed of by a Holder to any Person that is not
a Holder, or (iii) such Registrable Securities shall have ceased to be
outstanding.
"Registration Expenses" means any and all expenses incident to performance
of or compliance with any registration of securities pursuant to Article 2,
including, without limitation, (i) the fees, disbursements and expenses of the
Issuer's counsel and accountants (including in connection with the delivery of
opinions and/or comfort letters) in connection with this Agreement and the
performance of the Issuer's obligations hereunder; (ii) all expenses, including
filing fees, in connection with the preparation, printing and filing of one or
more registration statements hereunder; (iii) the cost of printing or producing
any agreements among underwriters, underwriting agreements, and blue sky or
legal investment memoranda; (iv) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the securities to be disposed of; (v) transfer agents' and
registrars' fees and expenses in connection with such offering; (vi) all
security engraving and security printing expenses; (vii) all fees and expenses
payable in connection with the listing of the Registrable Securities on any
securities exchange or automated interdealer quotation system on which the
Common Stock is then listed; and (viii) all reasonable fees and expenses of one
legal counsel for the Holders in connection with each of the
Page 31 of 47
<PAGE> 3
Exhibit 13
Required Shelf Registration and the Demand Registration, which legal counsel
shall be selected by Holders owning a majority of the Registrable Securities
then being registered; provided that Registration Expenses shall exclude (x) all
underwriting discounts and commissions, selling or placement agent or broker
fees and commissions, and transfer taxes, if any, in connection with the sale of
any securities, (y) the fees and expenses of counsel for any Holder (other than
pursuant to clause (viii)) and (z) all costs and expenses of the Issuer incurred
as contemplated in Section 2.6(g).
"Required Shelf Registration" has the meaning ascribed thereto in Section
2.1.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 145" means Rule 145 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated under
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" means any Holder who sells Registrable Securities pursuant
to a public offering registered hereunder.
"Shelf Registration" means the registration under the Securities Act of a
Rule 415 Offering.
"Shelf Registration Statement" means a registration statement intended to
effect a Shelf Registration.
"Zell Holders' Agent" has the meaning ascribed thereto in Section 3.11.
"Zell Holder" means an Investor, any Affiliate of an Investor that is a
Holder, and each Person referred to in clause (x) of the definition of "Holder".
Section 1.2. Internal References. Unless the context indicates otherwise,
references to Articles, Sections and paragraphs shall refer to the corresponding
articles, sections and paragraphs in this Agreement, and references to the
parties shall mean the parties to this Agreement.
Page 32 of 47
<PAGE> 4
Exhibit 13
ARTICLE 2
REGISTRATION RIGHTS
Section 2.1. Shelf Registration. If requested by a Holder or Holders
holding a majority in interest of the Registrable Securities, as soon as
practicable (but in any event not more than 15 days) after such request, the
Issuer shall prepare and file with the Commission a Shelf Registration Statement
on an appropriate form that shall include all Registrable Securities, and may
include securities of the Issuer for sale for the Issuer's own account (the
"Required Shelf Registration"). The Issuer shall use its reasonable best
efforts to cause such Shelf Registration Statement to be declared effective as
soon as practicable after such request. Notwithstanding anything else contained
in this Agreement, the Issuer shall only be obligated to keep such Shelf
Registration Statement effective until the earliest of:
(a) (y) 12 months after the date such Shelf Registration Statement has been
declared effective or (z) the date, which may not be earlier than 90 days
following the date such Registration Statement has been declared effective, on
which the Issuer delivers to the Holders an opinion of counsel, reasonably
acceptable to the Issuer and the Zell Holders' Agent, to the effect that in
the opinion of such counsel, sales by a Holder (other than a general partner
of an Investor or Samuel Zell) would not be aggregated with sales by other
Holders for purposes of the volume limitations of Rule 144 or 145, provided
that such 12-month period or 90-day period, respectively, shall be extended by
(i) the length of any period during which the Issuer delays in maintaining the
Shelf Registration Statement current pursuant to Section 2.4, (ii) the length
of any period (in which such Shelf Registration Statement is required to be
effective hereunder) during which such Shelf Registration Statement is not
maintained effective, and (iii) such number of days that equals the number of
days elapsing from (x) the date the written notice contemplated by Section
2.6(e) below is given by the Issuer to (y) the date on which the Issuer
delivers to the Holders of Registrable Securities the supplement or amendment
contemplated by Section 2.6(e) below;
(b) such time as all Registrable Securities have been sold or disposed of
thereunder or sold, transferred or otherwise disposed of to a Person that is
not a Holder; and
(c) such time as all securities that were Registrable Securities on the
date hereof have ceased to be Registrable Securities (the earliest of (a), (b)
and (c) being the "Shelf Termination Date").
The Required Shelf Registration shall not be counted as a Demand Registration
for purposes of Section 2.2 of this Agreement.
Section 2.2. Demand Registration. (a) Upon written notice to the Issuer
from a Holder or Holders holding a majority in interest of the Registrable
Securities (but no later than the
Page 33 of 47
<PAGE> 5
Exhibit 13
date that is 12 months after the Effective Time) (the "Demand Request")
requesting that the Issuer effect the registration under the Securities Act of
any or all of the Registrable Securities held by such requesting Holders, which
notice shall specify the intended method or methods of disposition of such
Registrable Securities, the Issuer shall prepare as soon as practicable and,
within 15 days after such request, file with the Commission a registration
statement with respect to such Registrable Securities and thereafter use its
reasonable best efforts to cause such registration statement to be declared
effective under the Securities Act for purposes of dispositions in accordance
with the intended method or methods of disposition stated in such request within
30 days after the filing of such registration statement. Notwithstanding any
other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their rights to request
registration under this Section 2.2(a) on not more than one occasion (such
registration being referred to herein as the "Demand Registration");
(ii) the method of disposition requested by Holders in connection with any
Demand Registration may not, without the Issuer's written consent, be a Rule
415 Offering; and
(iii) the Issuer shall not be required to effect the Demand Registration
hereunder if all securities that were Registrable Securities on the date
hereof have ceased to be Registrable Securities.
(b) Notwithstanding any other provision of this Agreement to the contrary,
a Demand Registration requested by Holders pursuant to this Section 2.2 shall
not be deemed to have been effected, and, therefore, not requested and the
rights of each Holder shall be deemed not to have been exercised for purposes of
paragraph (a) above, (i) if such Demand Registration has not become effective
under the Securities Act or (ii) if such Demand Registration, after it became
effective under the Securities Act, was not maintained effective under the
Securities Act (other than as a result of any stop order, injunction or other
order or requirement of the Commission or other government agency or court
solely on the account of a material misrepresentation or omission of a Holder)
for at least 30 days (or such shorter period ending when all the Registrable
Securities covered thereby have been disposed of pursuant thereto) and, as a
result thereof, the Registrable Securities requested to be registered cannot be
distributed in accordance with the plan of distribution set forth in the related
registration statement. So long as a Demand Request is made by the Holders
within the 12-month period referred to in Section 2.2(a), the Holders shall not
lose their right to their Demand Registration under Section 2.2 if the Demand
Registration related to such Demand Request is delayed or not effected in the
circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional
equity securities for sale for the account of the Issuer, but not for the
account of any other person, in the registration of Registrable Securities
requested by the Holders pursuant to Section 2.2(a) above, provided that if such
Holders are advised in writing (with a copy to the Issuer) by the lead or
managing underwriter referred to in Section 2.3(b) that, in such underwriter's
good faith view, all
Page 34 of 47
<PAGE> 6
Exhibit 13
or a part of such Registrable Securities and additional equity securities cannot
be sold and the inclusion of such Registrable Securities and additional equity
securities in such registration would be likely to have an adverse effect on the
price, timing or distribution of the offering and sale of the Registrable
Securities and additional equity securities then contemplated, then the number
of securities that can, in the good faith view of such underwriter, be sold in
such offering without so adversely affecting such offering shall be allocated
pro rata among the requesting Holders and the Issuer on the basis of the
relative number requested to be included therein by the Issuer and each such
Holder; provided that in the event such a pro rata allocation shall be made in
connection with the Demand Request, the remaining Holders shall be entitled to
request one additional Demand Registration (without needing to make a Demand
Request therefor within the 12-month period referred to in Section 2.2(a));
provided further that in connection with such additional Demand Registration, if
any, the Issuer may not include additional securities therein for its own
account if such inclusion would result in any reduction in the Registrable
Securities proposed to be sold therein by the Holders. The Holders of the
Registrable Securities to be offered pursuant to paragraph (a) above may require
that any such additional equity securities be included by the Issuer in the
offering proposed by such Holders on the same conditions as the Registrable
Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, the
Issuer shall provide a written notice to each Holder (provided that, if so
requested by the Issuer after appropriate notice to the Zell Holders' Agent by
the Issuer, the Zell Holders' Agent shall provide written notice to each Zell
Holder), advising such Holder of its right to include any or all of the
Registrable Securities held by such Holder for sale pursuant to the Demand
Registration and advising such Holder of procedures to enable such Holder to
elect to so include Registrable Securities for sale in the Demand Registration.
Any Holder may, within 7 days of delivery to such Holder of a notice pursuant to
this Section 2.2(d), elect to so include Registrable Securities in the Demand
Registration by written notice to such effect to the Issuer specifying the
number of Registrable Securities desired to be so included by such Holder.
Section 2.3. Other Matters In Connection With Registrations. (a) Each Zell
Holder shall keep the Zell Holders' Agent informed promptly (x) of the name,
address and other contact information of such Zell Holder, (y) of the number of
Registrable Securities held from time-to-time by such Zell Holder, and (z) of
each sale, transfer or other disposition of Registrable Securities (including
the number of shares sold) by each such Zell Holder. The Zell Holders' Agent
shall use its reasonable best efforts to keep the Issuer informed promptly (x)
of the name, address and other contact information of each Zell Holder, (y) of
the number of Registrable Securities held from time-to-time by each such Zell
Holder and (z) of each sale, transfer or other disposition of Registrable
Securities (including the number of shares sold) by each such Zell Holder.
(b) In the event that any public offering pursuant to this Agreement shall
involve, in whole or in part, an underwritten offering, the Issuer shall have
the right to designate an underwriter or underwriters as the lead or managing
underwriters of such underwritten offering who
Page 35 of 47
<PAGE> 7
Exhibit 13
shall be reasonably acceptable to Holders owning a majority of the Registrable
Securities proposed to be sold therein.
Section 2.4. Certain Delay Rights. Notwithstanding any other provision of
this Agreement to the contrary, if at any time while the Required Shelf
Registration is effective the Issuer provides written notice to each Holder
(whether by notice directly to such Holder or, in the case of the Zell Holders,
through the Zell Holders' Agent) that in the Issuer's good faith and reasonable
judgment it would be materially disadvantageous to the Issuer (because the sale
of Registrable Securities covered by such registration statement or the
disclosure of information therein or in any related prospectus or prospectus
supplement would materially interfere with any acquisition, financing or other
material event or transaction in connection with which a registration of
securities under the Securities Act for the account of the Issuer is then
intended or the public disclosure of which at the time would be materially
prejudicial to the Issuer (a "Disadvantageous Condition") for sales of
Registrable Securities thereunder to then be permitted, and setting forth the
general reasons for such judgment, the Issuer may refrain from maintaining
current the prospectus contained in the Shelf Registration Statement until such
Disadvantageous Condition no longer exists (notice of which the Issuer shall
promptly deliver to each Holder (directly or, in the case of the Zell Holders,
through the Zell Holders' Agent)). Furthermore, notwithstanding anything else
contained in this Agreement, with respect to any registration statement filed,
or to be filed, pursuant to Section 2.2, if the Issuer provides written notice
to each Holder (whether by notice directly to such Holder or, in the case of
the Zell Holders, through the Zell Holders' Agent) that in the Issuer's good
faith and reasonable judgment it would be materially disadvantageous to the
Issuer (because of a Disadvantageous Condition) for such a registration
statement to be maintained effective, or to be filed and become effective, and
setting forth the general reasons for such judgment, the Issuer shall be
entitled to cause such registration statement to be withdrawn or the
effectiveness of such registration statement terminated, or, in the event no
registration statement has yet been filed, shall be entitled not to file any
such registration statement, until such Disadvantageous Condition no longer
exists (notice of which the Issuer shall promptly deliver to each Holder
(directly or, in the case of the Zell Holders, through the Zell Holders'
Agent)). With respect to each Holder, upon the receipt by such Holder of any
such notice of a Disadvantageous Condition (directly from the Issuer or, in the
case of the Zell Holders, through the Zell Holders' Agent) (i) in connection
with the Required Shelf Registration, such Holder shall forthwith discontinue
use of the prospectus and any prospectus supplement under such registration
statement and shall suspend sales of Registrable Securities until such
Disadvantageous Condition no longer exists and (ii) in connection with the
Required Shelf Registration or the Demand Registration, as applicable, if so
directed by the Issuer by notice as aforesaid, such Holder will deliver to the
Issuer all copies, other than permanent filed copies then in such Holder's
possession, of the prospectus and prospectus supplements then covering such
Registrable Securities at the time of receipt of such notice as aforesaid.
Notwithstanding anything else contained in this Agreement, (x) neither the
filing nor the effectiveness of any registration statement under Section 2.2 may
be delayed for more than a total of 60 days pursuant to this Section 2.4 and (y)
the maintaining current of a prospectus (and the suspension of sales of
Registrable Securities) in connection with the Required Shelf Registration may
not be delayed under this Section 2.4 for more than a total of 60 days in any
six-month period.
Page 36 of 47
<PAGE> 8
Exhibit 13
Section 2.5. Expenses. Except as provided herein, the Issuer shall pay all
Registration Expenses with respect to each registration hereunder.
Notwithstanding the foregoing, (i) each Holder and the Issuer shall be
responsible for its own internal administrative and similar costs, which shall
not constitute Registration Expenses, (ii) each Holder shall be responsible for
the legal fees and expenses of its own counsel (except as provided in clause
(viii) of the definition of Registration Expenses), (iii) each Holder shall be
responsible for all underwriting discounts and commissions, selling or placement
agent or broker fees and commissions, and transfer taxes, if any, in connection
with the sale of securities by such Holder, and (iv) the Holders shall be
jointly and severally responsible for all out-of-pocket costs and expenses of
the Issuer and its officers and employees incurred in connection with providing
the assistance and/or attending analyst or investor presentations or any "road
show" undertaken in connection with the registration and/or marketing of any
Registrable Securities as contemplated in Section 2.6(g).
Section 2.6. Registration and Qualification. If and whenever the Issuer is
required to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 2.1 or 2.2, the Issuer shall as promptly
as practicable (but subject to the provisions of Sections 2.1 and 2.2):
(a) prepare, file and cause to become effective a registration statement
under the Securities Act relating to the Registrable Securities to be offered in
accordance with the intended method of disposition thereof;
(b) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities (i) in the case of the Required Shelf Registration, until
the Shelf Termination Date and (ii) in the case of the Demand Registration,
until the earlier of (A) such time as all Registrable Securities proposed to be
sold therein have been disposed of in accordance with the intended methods of
disposition set forth in such registration statement and (B) the expiration of
30 days after such registration statement becomes effective, provided, that such
30-day period shall be extended for such number of days that equals the number
of days elapsing from (x) the date the written notice contemplated by paragraph
(e) below is given by the Issuer to (y) the date on which the Issuer delivers to
the Holders of Registrable Securities the supplement or amendment contemplated
by paragraph (e) below;
(c) furnish to the Holders of Registrable Securities and to any underwriter
of such Registrable Securities such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus),
in conformity with the requirements of the Securities Act, and such documents
incorporated by reference in such registration statement or prospectus, as the
Holders of Registrable Securities or such underwriter may reasonably request;
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<PAGE> 9
Exhibit 13
(d) furnish to any underwriter of such Registrable Securities an opinion of
counsel for the Issuer and a "cold comfort" letter signed by the independent
public accountants who have audited the financial statements of the Issuer
included in the applicable registration statement, in each such case covering
substantially such matters with respect to such registration statement (and the
prospectus included therein) and the related offering as are customarily covered
in opinions of issuer's counsel with respect thereto and in accountants' letters
delivered to underwriters in underwritten public offerings of securities and
such other matters as such underwriters may reasonably request;
(e) promptly notifying the Selling Holders in writing (i) at any time when
a prospectus relating to a registration pursuant to Section 2.1 or 2.2 is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (ii) of any request by the Commission or any other
regulatory body or other body having jurisdiction for any amendment or
supplement to any registration statement or other document relating to such
offering, and in either such case, at the request of the Selling Holders prepare
and furnish to the Selling Holders a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(f) use its reasonable best efforts to list all such Registrable Securities
covered by such registration on each securities exchange and automated
interdealer quotation system on which the Common Stock is then listed;
(g) use reasonable efforts to assist the Holders in the marketing of Common
Stock in connection with up to two underwritten offerings hereunder (including,
to the extent reasonably consistent with work commitments, using reasonable
efforts to have officers of the Issuer attend "road shows" and analyst or
investor presentations scheduled in connection with such registration), with all
out-of-pocket costs and expenses incurred by the Issuer or such officers in
connection with such attendance or assistance to be paid by the Holders as
provided in Section 2.5; and
(h) furnish for delivery in connection with the closing of any offering of
Registrable Securities pursuant to a registration effected pursuant to Section
2.1 or 2.2 unlegended certificates representing ownership of the Registrable
Securities being sold in such denominations as shall be requested by the Selling
Holders or the underwriters.
Section 2.7. Underwriting; Due Diligence. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant to
a registration requested under this
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<PAGE> 10
Exhibit 13
Article 2, the Issuer shall enter into an underwriting agreement with such
underwriters for such offering, which agreement will contain such
representations and warranties by the Issuer and such other terms and provisions
as are customarily contained in underwriting agreements with respect to
secondary distributions, including, without limitation, indemnification and
contribution provisions substantially to the effect and to the extent provided
in Section 2.8, and agreements as to the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 2.6(d).
Such underwriting agreement shall also contain such representations and
warranties by such Selling Holders and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnification and contribution
provisions substantially to the effect and to the extent provided in Section
2.8.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act pursuant
to this Article 2, the Issuer shall give the Permitted Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants (the identity and number of whom shall be reasonably
acceptable to the Issuer), such reasonable and customary access to its books,
records and properties and such opportunities to discuss the business and
affairs of the Issuer with its officers and the independent public accounts who
have certified the financial statements of the Issuer as shall be necessary, in
the opinion of such Holders and such underwriters or their respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act;
provided that the foregoing shall not require the Issuer to provide access to
(or copies of) any competitively sensitive information relating to the Issuer or
its subsidiaries or their respective business; provided further that (i) each
Holder and the underwriters and their respective counsel and accountants shall
have entered into a confidentiality agreement reasonably acceptable to the
Issuer and (ii) the Permitted Holders and the underwriters and their respective
counsel and accountants shall use their reasonable best efforts to minimize the
disruption to the Issuer's business and coordinate any such investigation of the
books, records and properties of the Issuer and any such discussions with the
Issuer's officers and accountants so that all such investigations occur at the
same time and all such discussions occur at the same time.
Section 2.8. Indemnification and Contribution. (a) The Issuer agrees to
indemnify and hold harmless each Selling Holder and each Person, if any, who
controls such Selling Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or alleged untrue statement of
a material fact contained in any registration statement or any amendment
thereof, any preliminary prospectus or prospectus (as amended or supplemented if
the Issuer shall have furnished any amendments or supplements thereto) relating
to the Registrable Securities, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Issuer in writing by
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<PAGE> 11
Exhibit 13
such Selling Holder expressly for use therein. The Issuer also agrees to
indemnify any underwriter of the Registrable Securities so offered and each
Person, if any, who controls such underwriter on substantially the same basis as
that of the indemnification by the Issuer of the Selling Holders provided in
this Section 2.8(a).
(b) Each Selling Holder agrees to indemnify and hold harmless the Issuer,
its directors, the officers who sign the registration statement and each Person,
if any who controls the Issuer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
loses, claims, damages, liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or any amendment thereof, any
preliminary prospectus or prospectus (as amended or supplemented if the Issuer
shall have furnished any amendments or supplements thereto) relating to the
Registrable Securities, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
furnished in writing by such Selling Holder (or any representative thereof)
expressly for use in a registration statement, any preliminary prospectus,
prospectus or any amendments or supplements thereto. Each Selling Holder also
agrees to indemnify any underwriter of the Registrable Securities so offered and
each Person, if any, who controls such underwriter on substantially the same
basis as that of the indemnification by such Selling Holder of the Issuer
provided in this Section 2.8(b).
(c) Each party indemnified under paragraph (a) or (b) above shall, promptly
after receipt of notice of a claim or action against such indemnified party in
respect of which indemnity may be sought hereunder, notify the indemnifying
party in writing of the claim or action; provided that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party on account of the indemnity agreement contained in
paragraph (a) or (b) above except to the extent that the indemnifying party was
actually prejudiced by such failure, and in no event shall such failure relieve
the indemnifying party from any other liability that it may have to such
indemnified party. If any such claim or action shall be brought against an
indemnified party, and it shall have notified the indemnifying party thereof,
unless based on the written advice of counsel to such indemnified party a
conflict of interest between such indemnified party and indemnifying parties may
exist in respect of such claim, the indemnifying party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 2.8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof. Any indemnifying party against whom indemnity may be sought
under this Section 2.8 shall not be liable to indemnify an indemnified party if
such indemnified party settles such claim or action without the consent of the
indemnifying party. The indemnifying party may not agree to any settlement of
any such claim or action, other than solely for monetary damages for which the
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<PAGE> 12
Exhibit 13
indemnifying party shall be responsible hereunder, the result of which any
remedy or relief shall be applied to or against the indemnified party, without
the prior written consent of the indemnified party, which consent shall not be
unreasonably withheld. In any action hereunder as to which the indemnifying
party has assumed the defense thereof, the indemnified party shall continue to
be entitled to participate in the defense thereof, with counsel of its own
choice, but the indemnifying party shall not be obligated hereunder to reimburse
the indemnified party for the costs thereof.
(d) If the indemnification provided for in this Section 2.8 shall for any
reason be unavailable (other than in accordance with its terms) to an
indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Issuer on the one hand and the Selling Holders on the other hand from the
offering of the Registrable Securities 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 party or parties on the
one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and the Selling Holders
on the other hand in connection with the offering of the Registrable Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Registrable Securities (before deducting expenses)
received by the Issuer and the Selling Holders, respectively, bear to the
aggregate public offering price of the Registrable Securities. The relative
fault of the Issuer on the one hand and the Selling Holders 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 the Issuer or a
Selling Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by an indemnified party as a result of the loss,
cost, claim, damage or liability, or action in respect thereof, referred to
above in this paragraph (d) shall be deemed to include, for purposes of this
paragraph (d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. The Issuer and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 2.8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding any other provision of this Section 2.8, no Selling Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Selling Holder were offered to
the public exceeds the amount of any damages which such Selling Holder 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 Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
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<PAGE> 13
Exhibit 13
(e) The obligations of the parties under this Section 2.8 shall be in
addition to any liability which any party may otherwise have to any other party.
Section 2.9. Holdback Agreement. If the Demand Registration pursuant to
this Article 2 shall be in connection with an underwritten public offering of
Registrable Securities, each Selling Holder agrees not to effect any sale or
distribution, including any sale under Rule 144, of any equity security of the
Issuer (otherwise than through the registered public offering then being made),
within 7 days prior to or 90 days (or such lesser period as the lead or managing
underwriters may permit) after the effective date of the applicable registration
statement.
ARTICLE 3
MISCELLANEOUS
Section 3.1. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
Section 3.2. Assignment. No party may assign any of its rights or
obligations hereunder by operation of law or otherwise without the prior written
consent of the other parties.
Section 3.3. Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the Issuer and
Holders representing a majority of the Registrable Securities then held by all
Holders.
Section 3.4. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy, or by
any courier service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
address or telecopy number set forth on the signature pages hereto (unless such
contact information in the case of the Holders is updated pursuant to Section
2.3(a) or by written notice from the affected Holder to the Issuer).
Section 3.5. Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such
Page 42 of 47
<PAGE> 14
Exhibit 13
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
Section 3.6. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 3.7. No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any Person who or
which is not a party hereto; provided, that, this Agreement is also intended to
be for the benefit of and is enforceable by each Holder.
Section 3.8. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
Section 3.9. Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York or any state court sitting in the City of New York, Borough
of Manhattan in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be brought
only in such courts (and waives any objection based on forum non convenience or
any other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 3.9 and shall
not be deemed to be a general submission to the jurisdiction of said courts or
in the State of New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
Section 3.10. Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
Section 3.11. Holders' Agent. Each Zell Holder hereby appoints
Zell/Chilmark Fund, L.P. as its agent and attorney-in-fact (the "Zell Holders'
Agent") for purposes of the delivery and receipt of all notices and requests
pursuant to this Agreement. The Issuer may give notice to any Zell Holder
hereunder by giving such notice directly to such Holder. Alternatively, the
Issuer may request that the Zell Holders' Agent deliver to each Zell Holder any
notice given by the Issuer hereunder, in which event the Zell Holders' Agent
will promptly so give such notice to each Zell Holder. Prompt delivery by the
Zell Holders' Agent to the Zell Holders will be deemed satisfied if delivery is
made to the Zell Holders, in accordance with Section 3.4, not later than the
third business day after actual receipt of the applicable notice or document by
the Zell Holders' Agent
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<PAGE> 15
Exhibit 13
from the Issuer. Notwithstanding anything else contained herein, the Zell
Holders' Agent will not be liable or responsible to any Person should any Zell
Holder fail to act in accordance with any notice so given to such Zell Holder
hereunder.
Section 3.12. Counterparts. This Agreement may be executed in
counterpart, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
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<PAGE> 16
Exhibit 13
IN WITNESS WHEREOF, the Issuer and the Holders have caused this Agreement
to be duly executed as of the day and year first above written.
CLEAR CHANNEL
COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Address: 200 Concord Plaza
Suite 600
San Antonio, TX 78216
Facsimile No.: (210) 822-2299
HOLDERS:
- --------
ZELL/CHILMARK FUND, L.P. SAMSTOCK, L.L.C.
By: ZC Limited Partnership, By: SZ Investments, L.L.C., its sole
general partner member
By: ZC Partnership, general partner By: Zell General Partnership, Inc.,
a member
By: ZC Inc., a partner
By: By:
-------------------------------- ---------------------------------
Name: Sheli Z. Rosenberg Name: Sheli Z. Rosenberg
Address: 2 North Riverside Plaza Address: 2 North Riverside Plaza
Chicago, Illinois 60606 Chicago, Illinois 60606
Facsimile No.: (312) 454-0531 Facsimile No.: (312) 207-5243
SZ2 (IGP) PARTNERSHIP
By:
-------------------------------- ------------------------------------
Name: Sheli Z. Rosenberg SAMUEL ZELL
Address: 2 North Riverside Plaza Address: 2 North Riverside Plaza
Chicago, Illinois 60606 Chicago, Illinois 60606
Facsimile No.: (312) 454-0531 Facsimile No.: (312) 207-5243
Page 45 of 47
<PAGE> 1
Exhibit 14
AMENDED AND RESTATED JOINT FILING AGREEMENT
AGREEMENT dated as of May 16, 1997 and amended and restated in its entirety
as of October 16, 1998, among Zell/Chilmark Fund, L.P.; Samstock, L.L.C.; SZ2
(IGP) Partnership; Anda Partnership and Samuel Zell (collectively the "Reporting
Persons").
WHEREAS, the Reporting Persons beneficially own shares of Common Stock, no
par value of Jacor Communications, Inc.
WHEREAS, the parties hereto may be deemed to constitute a "group" for
purposes of section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Act"); and
WHEREAS, each of the parties hereto desire by this Agreement to provide for
the joint filing of a Schedule 13D, and all amendments thereto, with the
Securities and Exchange Commission.
NOWTHEREFORE, the parties hereto agree as follows:
1. Except as provided in paragraph 2 below:
a. The parties hereto will join in the preparation
and filing of a single statement containing the information
required by Schedule 13D, and all amendments thereto, and the
Schedule 13D and all such amendments will be filed on behalf
of each party hereto;
b. Each party hereto will be responsible for the
timely filing of the Schedule 13D, and all amendments thereto,
and for the completeness and accuracy of the information
concerning such party contained therein. No party hereto will
be responsible for the completeness or accuracy of the
information concerning any other party contained in the
Schedule 13D or any amendment thereto, except to the extent
such party knows or has reason to believe that such
information is inaccurate.
c. Sheli Z. Rosenberg will be designated as the
person authorized to receive notices and communication with
respect to the Schedule 13D and all amendments thereto.
2. Anda Partnership will no longer join in the preparation or
filing of a single Schedule 13D statement after Amendment No. 4 to
the Schedule 13D dated April 23, 1993, has been prepared and filed
and Anda Partnership will no longer be considered a party to this
Amended and Restated Joint Filing Agreement for any Amendments to
such Schedule 13D filed subsequent to such Amendment No. 4.
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<PAGE> 2
Exhibit 14
3. This Agreement may be executed in counterparts, all of which when
taken together with constitute one and the same instrument.
ZELL/CHILMARK FUND, L.P. SZ2 (IGP) PARTNERSHIP
By: ZC Limited Partnership
general partner
By: ZC Partnership, general
partner
By: ZC, Inc., a partner
By: /s/ Samuel Zell By: /s/ Samuel Zell
----------------------------- ----------------------------
Samuel Zell, President Samuel Zell
SAMSTOCK, L.L.C. ANDA PARTNERSHIP
By: SZ Investments, L.L.C., its By: Ann Only Trust, a partner
sole member
By: Zell General Partnership, Inc.
the managing member
By: /s/ Samuel Zell By: /s/ Mark Slezak
----------------------------- ----------------------------
Samuel Zell, President Mark Slezak, Co-Trustee
/s/ Samuel Zell
- ----------------------------------
SAMUEL ZELL
Page 47 of 47
