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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: February 3, 1998
JACOR COMMUNICATIONS, INC.
DELAWARE
(State or Other Jurisdiction of Incorporation)
0-12404 31-0978313
(Commission File No.) (IRS Employer Identification No.)
50 East RiverCenter Boulevard
12th Floor
Covington, KY 41011
(606) 655-2267
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Item 5. Other Events
On November 13, 1997, Jacor Communications, Inc. ("JCI") and its
subsidiaries (together with JCI, the "Company") filed a registration
statement (File No. 333-40127) with the Securities and Exchange Commission
(the "Commission") relating to the public offering, pursuant to Rule 415
under the Securities Act of 1933, as amended (the "Act"), of up to $500.0
million of equity and debt securities of the Company (the "Omnibus Shelf
Registration Statement"). On November 26, 1997, the Commission declared the
Omnibus Shelf Registration Statement, as amended, effective. On January 20,
1998, the Company filed a post-effective amendment (the "Post-Effective
Amendment") with the Commission relating to the Omnibus Shelf Registration
Statement. On January 23, 1998, the Commission declared the Post-Effective
Amendment effective. On February 4, 1998, the Company filed an abbreviated
registration statement on Form S-3 with the Commission pursuant to Rule
462(b) under the Act, registering an additional 845,586 shares of JCI's
common stock, $.01 par value (the "Common Stock") for sale pursuant to the
Omnibus Shelf Registration Statement. (The definitive prospectus contained in
the Omnibus Shelf Registration Statement (which includes the prospectus
incorporated by reference into the abbreviated registration statement) is
herein referred to as the "Prospectus.")
On February 4, 1998, the Company filed with the Commission, pursuant to
Rule 424(b) under the Act, definitive supplements to the Prospectus dated
January 21, 1998 (the "Prospectus Supplements") relating to (1) the offer for
sale by Jacor Communications Company, a wholly owned subsidiary of JCI, of
Senior Subordinated Notes due 2010 in the aggregate principal amount of
$120,000,000, (2) the offer and sale by JCI of $383,573,000 aggregate
principal amount at maturity of Liquid Yield Option-TM- Notes due 2018 with
gross proceeds of $150,000,000 (together with an underwriter's over-allotment
option to purchase up to an additional $43,344,000 aggregate principal amount
at maturity of the Liquid Yield Option-TM- Notes due 2018 offered), and (3)
the offer for sale by JCI of 4,560,000 shares of JCI Common Stock (together
with an additional 513,000 shares subject to an underwriters' over allotment
option). In connection with the filing of the Prospectus Supplements with
the Commission, the Company is filing certain exhibits as part of this Form
8-K. See "Item 7. Financial Statements and Exhibits."
- -TM-Trademark of Merrill Lynch & Co.
Item 7. Financial Statements and Exhibits
(c) Exhibits
1.1 Underwriting Agreement dated February 3, 1998 among the Company, Donaldson,
Lufkin & Jenrette Securities Corporation and Chase Securities Inc. relating
to the Senior Subordinated Notes due 2010.
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1.2 Purchase Agreement dated February 3, 1998 between the Company and Merrill
Lynch, Pierce, Fenner & Smith Incorporated relating to the Liquid Yield
Option-TM- Notes due 2018.
1.3 Underwriting Agreement dated February 3, 1998 among the Company, Donaldson,
Lufkin & Jenrette Securities Corporation and the other underwriters named
therein relating to JCI Common Stock.
3.1 Bylaws of Jacor Communications, Inc. (as amended through May 28, 1997).
5.1 Opinion of Graydon, Head & Ritchey dated February 3, 1998 relating to the
Senior Subordinated Notes due 2010.
5.2 Opinion of Graydon, Head & Ritchey dated February 3, 1998 relating to the
Liquid Yield Option-TM- Notes due 2018.
5.3 Opinion of Graydon, Head & Ritchey dated February 3, 1998 relating to the
JCI Common Stock.
8.1 Opinion of Graydon, Head & Ritchey dated February 3, 1998 relating to tax
matters in connection with the Liquid Yield Option-TM- Notes due 2018.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of William T. Ogden, Inc.
23.4 Consent of KMPG Peat Marwick LLP.
23.5 Consents of Graydon, Head & Ritchey (included in Exhibits 5.1, 5.2, 5.3 and
8.1).
99.1 Press Release dated January 21, 1998.
99.2 Press Release dated February 4, 1998.
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Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
JACOR COMMUNICATIONS, INC.
February 4, 1998 By: /s/ Jon M. Berry
----------------------------------------
Jon M. Berry, Senior Vice President
and Treasurer
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EXHIBIT 1.1
JACOR COMMUNICATIONS COMPANY
8% Senior Subordinated Notes Due 2010
Payment of Principal and Interest Unconditionally
Guaranteed by Jacor Communications, Inc.
and the other Guarantors named herein
UNDERWRITING AGREEMENT
February 3, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CHASE SECURITIES INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, Jacor
Communications Company, a Florida corporation ("JCC") and a wholly owned
subsidiary of Jacor Communications, Inc. (the "Company"), proposes to issue and
sell to Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ") and Chase
Securities Inc. (collectively, the "Underwriters") an aggregate of $120,000,000
principal amount of its 8% Senior Subordinated Notes due 2010 (the
"Securities"), which notes are irrevocably and unconditionally guaranteed by the
Company, Broadcast Finance, Inc.; Cine Films, Inc.; Cine Guarantors, Inc.; Cine
Guarantors II, Inc.; Cine Guarantors II, Ltd.; Cine Mobile Systems Int'l. N.V.;
Cine Movil S.A. de C.V.; Citicasters Co.; GACC-N26LB, Inc.; Great American
Merchandising Group, Inc.; Great American Television Productions, Inc.;
Inmobilaria Radial, S.A. de C.V.; Jacor Broadcasting Corporation; Jacor
Broadcasting of Atlanta, Inc.; Jacor Broadcasting of Charleston, Inc.; Jacor
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Broadcasting of Colorado, Inc.; Jacor Broadcasting of Denver, Inc.; Jacor
Broadcasting of Florida, Inc.; Jacor Broadcasting of Kansas City, Inc.; Jacor
Broadcasting of Las Vegas, Inc.; Jacor Broadcasting of Las Vegas II; Jacor
Broadcasting of Louisville, Inc.; Jacor Broadcasting of Louisville II, Inc.;
Jacor Broadcasting of Salt Lake City, Inc.; Jacor Broadcasting of Salt Lake City
II, Inc.; Jacor Broadcasting of St. Louis, Inc.; Jacor Broadcasting of San
Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Tampa
Bay, Inc.; Jacor Broadcasting of Toledo, Inc.; Jacor Broadcasting of Youngstown,
Inc.; Jacor Cable, Inc.; Jacor Licensee of Charleston, Inc.; Jacor Licensee of
Kansas City, Inc., Jacor Licensee of Las Vegas, Inc.; Jacor Licensee of Las
Vegas II, Inc.; Jacor Licensee of Louisville, Inc.; Jacor Licensee of Louisville
II, Inc.; Jacor Licensee of Salt Lake City, Inc.; Jacor Licensee of Salt Lake
City II, Inc.; Jacor/Premiere Holding, Inc.; JBSL, Inc.; Location Productions,
Inc.; Location Productions II, Inc.; Multiverse Acquisition Corp.; Noble
Broadcast Center, Inc.; Noble Broadcast Group, Inc.; Noble Broadcast Holdings,
Inc.; Noble Broadcast Licenses, Inc.; Noble Broadcast of San Diego, Inc.;
Nobro, S.C.; Nova Marketing Group, Inc.; NSN Network Services, Ltd.; Premiere
Radio Networks, Inc.; Radio-Active Media, Inc.; Sports Radio Broadcasting, Inc.;
Sports Radio, Inc.; The Sy Fischer Company Agency, Inc.;VTTV Productions; and
WHOK, Inc., each a direct or indirect subsidiary of the Company or any successor
entity, whether by merger, consolidation, change of name or otherwise
(collectively, the "Guarantors" and together with "JCC", the "Registrants".)
The Securities are to be issued pursuant to the provisions of an indenture to be
dated as of February 9, 1998 (the "Indenture") by and among the Guarantors, JCC
and The Bank of New York as trustee (the "Trustee").
For purposes of this Agreement, the term "Securities" means the
Securities together with the guarantee (the "Guarantee") thereof by the
Guarantors.
The Securities are being issued and sold to fund, in part, the
consideration to be paid by the Company under the Nationwide Agreement (as
defined below). Alternatively and pending such uses, the Company intends to use
the net proceeds for general corporate purposes, including acquisitions of other
broadcast properties and broadcast related businesses and to repay in part
outstanding indebtedness under the revolving credit component of the Credit
Facility (defined below).
The Pending Transactions (as such term is defined in the Prospectus)
include, among other things, the acquisition (the "Nationwide Acquisition") of
17 radio stations (the "Nationwide Stations") from Nationwide (as defined below)
pursuant to an Agreement of Sale (the "Nationwide Agreement") dated as of
December 19, 1997, by and among JCC, Citicasters Co. and Nationwide
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Communications, Inc., Nationwide Mutual Insurance Company, Employers Insurance
of Wasau, San Diego Lotus Corp. and The Beak and Wire Corporation (collectively,
"Nationwide").
Prior to or concurrently with the issuance and sale of the
Securities, the Company will (i) issue and sell liquid yield option notes in
the aggregate principal amount at maturity of $383,573,000 (excluding
$43,344,000 aggregate principal amount at maturity subject to an
over-allotment option) due 2018 (the "LYONs"); and (ii) issue and sell
4,560,000 shares of its common stock, par value $.01 per share (the "Shares")
(excluding 513,000 Shares subject to an over-allotment option). This
Underwriting Agreement and all agreements and documents executed in
connection with the Pending Transactions and all documents and agreements
related to each of the offering of the LYONs (the "LYONs Offering") and the
offering of the Shares (the "Shares Offering") are collectively referred to
herein as the "Transaction Documents."
1. REGISTRATION STATEMENT AND PROSPECTUS. The Registrants have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a "shelf" registration statement on Form S-3 (No.
333-40127), including a prospectus, relating to debt securities, preferred
stock, depository shares and common stock, and will promptly file with the
Commission a prospectus supplement specifically relating to the Securities
pursuant to Rule 424 under the Act. The registration statement, as amended
at the time it became effective or, if a post-effective amendment is filed
with respect thereto, as amended by such post-effective amendment at the time
of its effectiveness, including in each case, all documents incorporated or
deemed incorporated by reference therein, if any, all financial statements
and exhibits, and the information, if any, contained in a prospectus or term
sheet subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be a part of the registration statement at the time of
its effectiveness pursuant to Rule 430A or Rule 434 under the Act (as
applicable), and any additional registration statement relating to the
issuance of additional Securities filed pursuant to Rule 462(b) under the
Act, is hereinafter referred to as the "Registration Statement"; and the
prospectus, constituting a part of the Registration Statement at the time it
became effective, or such revised prospectus as shall be provided to the
Underwriters for use in connection with the offering of the Securities that
differs from the prospectus on file with the Commission at the time the
Registration Statement became effective including any prospectus supplement,
and including, in each case, all documents incorporated or deemed
incorporated by reference therein, if any, whether or not filed with the
Commission pursuant to Rule 424(b) under the Act, and including any
preliminary prospectus supplement subject to completion and any term sheet
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meeting the requirements of Rule 434(c), filed pursuant to Rule 424(b), in
the form used to confirm sales of the Securities, are hereinafter referred to
collectively as the "Prospectus."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Registrants agree to issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Registrants, the Securities in the respective
principal amounts set forth opposite their names on Schedule I hereto, plus
such amount as they may individually become obligated to purchase pursuant to
Section 8 hereof, at a purchase price equal to 97.624% of the principal amount
thereof (the "Purchase Price").
3. DELIVERY AND PAYMENT. Delivery to you of and payment for the
Securities shall be made at 9:00 A.M., New York City time, on February 9,
1998 (the "Closing Date"), at such place as DLJ shall reasonably designate.
The Closing Date and the location of delivery of the Securities may be varied
by agreement between DLJ and the Company.
The Securities in definitive form shall be registered in such names
and issued in such denominations as DLJ shall request in writing not later than
two full business days prior to the Closing Date, and shall be made available to
you at the offices of DLJ (or such other place as shall be acceptable to you)
for inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date. The Securities shall be delivered to you on
the Closing Date with any transfer taxes payable upon initial issuance thereof
duly paid by the Company, for the respective accounts of the Underwriters
against payment of the Purchase Price by wire transfer of Federal or other funds
immediately available in New York City, to the order of the Company.
4. AGREEMENTS OF THE REGISTRANTS. The Registrants, as applicable,
agree with each of you that:
(a) The Registrants will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under the
Act, a post-effective amendment to the Registration Statement, in each
case as soon as practicable after the execution and delivery of this
Agreement, and will use their best efforts to cause the Registration
Statement or such post-effective amendment to become effective at the
earliest possible time.
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The Registrants will comply fully and in a timely manner with the
applicable provisions of Rule 424 and Rule 430A and, if applicable, Rule
462, under the Act.
(b) The Company will advise you promptly and, if requested by any
of you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent for
filing pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission or any state securities
commission or regulatory authority that relate to the Registration
Statement or requests by the Commission or any state securities
commission or regulatory authority for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement,
or of the suspension of qualification of the Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for such
purpose by the Commission or any state securities commission or any
other regulatory authority, and (iv) of the happening of any event
during such period as in your reasonable judgment you are required to
deliver a prospectus in connection with sales of the Securities by you
which makes any statement of a material fact made in the Registration
Statement untrue or which requires the making of any additions to or
changes in the Registration Statement (as amended or supplemented from
time to time) in order to make the statements therein not misleading or
that makes any statement of a material fact made in the Prospectus (as
amended or supplemented from time to time) untrue or which requires the
making of any additions to or changes in the Prospectus (as amended or
supplemented from time to time) in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. The Company shall use its best efforts to prevent the
issuance of any stop order or order suspending the qualification or
exemption of the Securities under any state securities or Blue Sky laws,
and, if at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption of the Securities under any state
securities or Blue Sky laws, the Company shall use every reasonable
effort to obtain the withdrawal or lifting of such order at the earliest
possible time.
(c) The Company will furnish to you without charge two (2) signed
copies (plus one (1) additional signed copy to your legal counsel) of
the Registration Statement as first filed with the Commission and of
each
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amendment to it, including all exhibits filed therewith, and will
furnish to you such number of conformed copies of the Registration
Statement as so filed and of each amendment to it, without exhibits, as
you may reasonably request.
(d) The Registrants will not file any amendment or supplement to
the Registration Statement, whether before or after the time when it
becomes effective, or make any amendment or supplement to the
Prospectus, of which you shall not previously have been advised and
provided a copy within two business days prior to the filing thereof (or
such reasonable amount of time as is necessitated by the exigency of
such amendment or supplement) or to which you shall reasonably object;
and the Registrants will prepare and file with the Commission, promptly
upon your reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus which may be necessary or
advisable in connection with the distribution of the Securities by you,
and will use their best efforts to cause any amendment to the
Registration Statement to become effective as promptly as possible.
(e) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period in your reasonable
judgment as a prospectus is required to be delivered in connection with
sales of the Securities by you, the Company will furnish to each
Underwriter and dealer without charge as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such
Underwriters and dealers may reasonably request. The Registrants
consent to the use of the Prospectus and any amendment or supplement
thereto by any Underwriter or any dealer, both in connection with the
offering or sale of the Securities and for such period of time
thereafter as the Prospectus is required by the Act or the Exchange Act
to be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the
Securities by you any event shall occur as a result of which, in the
opinion of counsel for the Underwriters, it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing as of the date the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with any law, the Registrants will promptly prepare
and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended
or supplemented, will not, in the light of the circumstances existing as
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of the date the Prospectus is so delivered, be misleading, and will
comply with applicable law, and will furnish to each Underwriter and
dealer without charge such number of copies thereof as such Underwriters
and dealers may reasonably request.
(g) Prior to any public offering of the Securities, the Registrants
will cooperate with you and your counsel in connection with the
registration or qualification of the Securities for offer and sale by
you under the state securities or Blue Sky laws of such jurisdictions as
you may request (provided, that the Registrants shall not be obligated
to qualify as a foreign corporation in any jurisdiction in which they
are not so qualified or to take any action that would subject them to
general consent to service of process in any jurisdiction in which they
are not now so subject). The Registrants will continue such
qualification in effect so long as required by law for distribution of
the Securities.
(h) The Company will make generally available to its security
holders as soon as reasonably practicable a consolidated earning
statement covering a period of at least twelve months beginning after
the "effective date" (as defined in Rule 158 under the Act) of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder, and to advise you in writing when such
statement has been so made available.
(i) The Registrants will timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the
Exchange Act.
(j) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed, and (ii) from time to time such other information
concerning the Company as you may request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, the Registrants will pay
and be responsible for all costs, expenses, fees and taxes in connection
with or incident to (i) the printing, processing, filing, distribution
and delivery under the Act or the Exchange Act of the Registration
Statement, each preliminary prospectus, the Prospectus and all
amendments or supplements thereto, (ii) the printing, processing,
execution, distribution and delivery of this Agreement, any memoranda
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describing state securities or Blue Sky laws and all other agreements,
memoranda, correspondence and other documents printed, distributed and
delivered in connection with the offering of the Securities, (iii) the
registration with the Commission and the issuance and delivery of the
Securities, (iv) the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of the
jurisdictions referred to in paragraph (g) above (including, in each
case, the fees and disbursements of counsel relating to such
registration or qualification and memoranda relating thereto and any
filing fees in connection therewith), (v) furnishing such copies of the
Registration Statement, Prospectus and preliminary prospectus, and all
amendments and supplements to any of them, as may be reasonably
requested by you, (vi) filing, registration and clearance with the NASD
in connection with the offering of the Securities (including any filing
fees in connection therewith and the fees and disbursements of counsel
relating thereto), (vii) any "qualified independent underwriter" as
required by Section 2720 of the Conduct Rules of the NASD (including
fees and disbursements of counsel for such qualified independent
underwriter), (viii) the printing, processing, execution, distribution
and delivery of the Transaction Documents and all other agreements,
memoranda, correspondence and other documents, printed, distributed and
delivered in connection with the Transaction Documents and (ix) the
performance by the Registrants of their other obligations under this
Agreement, the cost of their personnel and other internal costs, the
cost of printing and engraving the certificates representing the
Securities, and all expenses and taxes incident to the sale and delivery
of the Securities to you.
(l) The Company and JCC will use the proceeds from the sale of the
Securities in the manner described in the Prospectus under the caption
"Use of Proceeds."
(m) The Registrants will use their best efforts to do and perform
all things required to be done and performed under this Agreement by
them prior to or after the Closing Date and to satisfy all conditions
precedent on their part to the delivery of the Securities.
(n) The Company will timely complete all required filings and
otherwise comply fully in a timely manner with all provisions of the
Exchange Act, and will file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14(a) or 15(d) of the
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Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of the Prospectus is required in connection with the offer
or sale of the Securities.
(o) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, except as described under
"Transactions" in the Prospectus with respect to the Pending
Transactions and under "Prospectus Supplement Summary -- Recent
Developments" with respect to certain other potential transactions,
there will be no transactions entered into by the Company or any of its
subsidiaries (each a "Subsidiary" and, collectively, the
"Subsidiaries"), which are material with respect to the Company or any
of the Subsidiaries, respectively, taken individually or as a whole, as
determined in accordance with the provisions of Rule 3-05 of Regulation
S-X or other standards for materiality as may be agreed upon by the
Company and the Underwriters and there will be no dividend or
distribution of any kind declared, paid or made by the Company on any
class of capital stock or other equity interests.
5. REPRESENTATIONS AND WARRANTIES. The Registrants represent and
warrant to each of you that:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus
(if different) and at the Closing Date, the Registration Statement will
comply in all material respects with the provisions of the Act, and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date
of any such supplements or amendments and at the Closing Date contain
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties contained in this paragraph (a)
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any supplement or amendment to them)
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through DLJ expressly for use therein. The Registrants
acknowledge for all purposes under this Agreement that the statements
with respect to price and underwriting discount and the last paragraph
all as set forth on the cover page and in paragraph three, in the third
sentence of the fifth paragraph, and in paragraphs seven and eight under
the caption "Underwriting" in the Prospectus (or any amendment or
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supplement) constitute the only written information furnished to the
Registrants by DLJ expressly for use in the Registration Statement or
the Prospectus (or any amendment or supplement to them) and that the
Underwriters shall not be deemed to have provided any other information
(and therefore are not responsible for any such statement or omission).
(b) Any term sheet and prospectus subject to completion provided by
the Registrants to the Underwriters for use in connection with the
offering and sale of the Securities pursuant to Rule 434 under the Act
together are not materially different from the Prospectus included in
the Registration Statement.
(c) Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act, and each
Registration Statement filed pursuant to Rule 462(b) under the Act, if
any, complied when so filed in all material respects with the Act.
(d) The Company and each of its Subsidiaries has been duly
organized, is validly existing as a corporation in good standing under
the laws of its jurisdiction of organization and has the requisite
corporate power and authority to carry on its business as it is
currently being conducted, to own, lease and operate its properties and,
as applicable, to authorize the offering of the Securities, to execute,
deliver and perform this Agreement, and to issue, sell and deliver the
Securities, and to execute, deliver and perform the Transaction
Documents, as applicable, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction where the operation, ownership or leasing of property or
the conduct of its business requires such qualification, except where
the failure to be so qualified could not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the
respective properties, business, results of operations, condition
(financial or otherwise), affairs or prospects of each of the Company
and the Subsidiaries taken as a whole (a "Material Adverse Effect").
(e) All of the issued and outstanding shares of capital stock of,
or other ownership interests in, each Subsidiary have been duly and
validly authorized and issued, and all of the shares of capital stock
of, or other ownership interests in, each Subsidiary are owned, directly
or through Subsidiaries, by the Company and, upon completion of the
transactions contemplated by the Transaction Documents, substantially
all of the
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assets of the Nationwide Stations (other than as described
in the Prospectus) will be owned directly or through Subsidiaries, by
the Company. All such shares of capital stock are fully paid and
nonassessable, and are owned free and clear of any security interest,
mortgage, pledge, claim, lien or encumbrance (each, a "Lien"), except
for Liens arising under the Amended and Restated Credit Agreement, dated
as of September 16, 1997, by and among The Chase Manhattan Bank (as
successor by merger to Chemical Bank), as Administrative Agent, Banque
Paribas, as Documentation Agent, and Bank of America, Illinois, as
Syndication Agent (the "Credit Facility".) There are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sale or Liens related to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of, or
other ownership interest in, any Subsidiary.
(f) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"; all
the shares of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid, nonassessable and not
subject to any preemptive or similar rights.
(g) None of the Company or any of the Subsidiaries is in violation
of their respective charters or bylaws or in default in the performance
of any bond, debenture, note or any other evidence of indebtedness or
any indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of the Subsidiaries is a party or
by which any of them is bound, or to which any of the property or assets
of the Company or any of the Subsidiaries is subject.
(h) The Transaction Documents have been duly authorized and validly
executed and delivered by the Registrants, as applicable, and constitute
valid and legally binding agreements of the Registrants, as applicable,
enforceable against the Registrants, as applicable, in accordance with
their terms (assuming, in the case of each of the Transaction Documents,
the due execution and delivery thereof by each party thereto).
(i) The Indenture has been duly authorized by the Registrants and,
when duly executed and delivered in accordance with its terms, will be a
valid and legally binding agreement of the Registrants, enforceable
against the Registrants in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
and remedies generally and to general principles of equity (regardless
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of whether enforcement is sought in a proceeding at law or in equity)
and except to the extent that a waiver of rights under any usury laws
may be unenforceable.
(j) The execution and delivery of this Agreement, the Indenture and
the Securities by the Registrants, the issuance and sale of the
Securities, the performance of this Agreement and the Indenture and the
consummation of the transactions contemplated by this Agreement and the
Indenture and the execution and delivery of the Transaction Documents by
each of the Registrants, as applicable, and the consummation of the
Pending Transactions will not (1) conflict with or result in a breach or
violation of any of the respective charters or bylaws of the Company or
any of the Subsidiaries or any of the terms or provisions of, or (2)
constitute a default or cause an acceleration of any obligation under or
result in the imposition or creation of (or the obligation to create or
impose) a Lien with respect to, any bond, note, debenture or other
evidence of indebtedness or any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them is bound, or to
which any properties of the Company or any of the Subsidiaries is or may
be subject, or (3) contravene any order of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties, or violate or conflict with any
statute, rule or regulation or administrative or court decree applicable
to the Company or any of the Subsidiaries or any of their respective
properties.
(k) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries or Nationwide with
respect to the Nationwide Stations or any of their respective
properties, which is required to be disclosed in the Registration
Statement or the Prospectus, or which could reasonably be expected to
result, singly or in the aggregate, in a Material Adverse Effect or
which could reasonably be expected to materially and adversely affect
the consummation of this Agreement or the transactions contemplated
hereby or the consummation of the Transaction Documents or the Pending
Transactions, and to the best of the Company's knowledge, no such
proceedings are contemplated or threatened. No contract or document of
a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement is not so described or filed.
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(l) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities, suspends the
effectiveness of the Registration Statement, prevents or suspends the
use of any preliminary prospectus or suspends the sale of the Securities
in any jurisdiction referred to in Section 4(g) hereof; no injunction,
restraining order or order of any nature by a Federal or state court of
competent jurisdiction has been issued with respect to the Company or
any of the Subsidiaries which would prevent or suspend the issuance or
sale of the Securities, the effectiveness of the Registration Statement,
or the use of any preliminary prospectus in any jurisdiction referred to
in Section 4(g) hereof; no action, suit or proceeding is pending against
or, to the best of the Company's knowledge, threatened against or
affecting the Company or any of the Subsidiaries before any court or
arbitrator or any governmental body, agency or official, domestic or
foreign, which, if adversely determined, would materially interfere with
or adversely affect the issuance of the Securities or in any manner draw
into question the validity of the Transaction Documents; and every
request of the Commission or any securities authority or agency of any
jurisdiction for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) has been complied
with in all material respects.
(m)(i) None of the Company, any of the Subsidiaries and Nationwide
with respect to the Nationwide Stations is in violation of any Federal,
state or local laws and regulations relating to pollution or protection
of human health or the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface
strata), including, without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of toxic or
hazardous substances, materials or wastes, or petroleum and petroleum
products ("Materials of Environmental Concern"), or otherwise relating
to the protection of human health and safety, or the storage, disposal,
transport or handling of Materials of Environmental Concern
(collectively, "Environmental Laws"), which violation includes, but is
not limited to, noncompliance with any permits or other governmental
authorizations, except to the extent that any such violation could not
have a Material Adverse Effect or otherwise require disclosure in the
Prospectus; and (ii) to the best knowledge of the Company and any of the
Subsidiaries, after due inquiry, (A) none of the Company, any of the
Subsidiaries, Nationwide with respect to the Nationwide Stations and any
of the other parties to the Transaction Documents (the "Pending
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Transaction Parties") with respect to the properties and radio stations
to be purchased or sold pursuant to the Transaction Documents (the
"Pending Properties") has received any communication (written or oral),
whether from a governmental authority or otherwise, alleging any such
violation or noncompliance, and there are no circumstances, either past,
present or that are reasonably foreseeable, that may lead to such
violation in the future, (B) there is no pending or threatened claim,
action, investigation or notice (written or oral) by any person or
entity alleging potential liability for investigatory, cleanup, or
governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of
Environmental Concern at any location owned or operated by the Company,
any of the Subsidiaries, Nationwide with respect to the Nationwide
Stations, and the Pending Transaction Parties with respect to the
Pending Properties, now or in the past, or (y) circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law
(collectively, "Environmental Claims") that could have a Material
Adverse Effect or otherwise require disclosure in the Prospectus, and
(C) there are no past or present actions, activities, circumstances,
conditions, events or incidents, that could form the basis of any
Environmental Claim against the Company, any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations, and the Pending
Transaction Parties with respect to the Pending Properties, or against
any person or entity whose liability for any Environmental Claim the
Company, any of the Subsidiaries, Nationwide with respect to the
Nationwide Stations, and the Pending Transaction Parties with respect to
the Pending Properties, have retained or assumed either contractually or
by operation of law. In the ordinary course of its business, each of
the Company and the Subsidiaries and Nationwide with respect to the
Nationwide Stations conducts a periodic review of the effect of
Environmental Laws on its business, operations and properties in
the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties); on the basis of such review, the Company and the
Subsidiaries, have reasonably concluded that such associated costs and
liabilities could not have a Material Adverse Effect.
(n) None of the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations, and to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
has violated any Federal, state or local law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable wage or
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hour laws, nor any provisions of the Employee Retirement Income Security
Act of 1974 ("ERISA") or the rules and regulations promulgated
thereunder, nor has the Company or any of the Subsidiaries or Nationwide
with respect to the Nationwide Stations or, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, engaged in any unfair labor practice, which in each case
described in this sentence could reasonably be expected to result,
singly or in the aggregate, in a Material Adverse Effect. There is (i)
no significant unfair labor practice complaint pending against the
Company or any of the Subsidiaries or Nationwide with respect to the
Nationwide Stations or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, or, to the
best knowledge of the Company, threatened against any of them, before
the National Labor Relations Board or any state or local labor relations
board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement
is so pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge
of the Company, the Pending Transaction Parties with respect to the
Pending Properties, or, to the best knowledge of the Company, threatened
against any of them, (ii) no significant strike, labor dispute, slowdown
or stoppage pending against the Company or any of its Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge
of the Company, the Pending Transaction Parties with respect to the
Pending Properties, or, to the best knowledge of the Company, threatened
against the Company or any of the Subsidiaries, Nationwide with respect
to the Nationwide Stations, or the Pending Transaction Parties with
respect to the Pending Properties and (iii) to the best knowledge of the
Company, no union representation question existing with respect to the
employees of the Company or any of the Subsidiaries, or the Pending
Transaction Parties with respect to the Pending Properties, and, to the
best knowledge of the Company, no union organizing activities are taking
place, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, singly or in the aggregate) such as could not have a
Material Adverse Effect.
(o) The Company, each of its Subsidiaries and Nationwide with
respect to the Nationwide Stations each have good and marketable title,
free and clear of all Liens, to all property and assets described in the
Registration Statement as being owned by it, except for (i) Liens
pursuant to the Credit Facility, (ii) Liens on general office equipment
which are not material to the Company's operations and (iii) Liens on
the Nationwide Stations which will be released upon consummation of the
Nationwide Acquisition. All leases to which the Company, the
Subsidiaries or Nationwide with respect to the Nationwide Stations are a
party are valid and binding and no default has occurred or is continuing
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thereunder and the Company, each of its Subsidiaries and Nationwide with
respect to the Nationwide Stations enjoy peaceful and undisturbed
possession under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere with the use
made by the Company or any such Subsidiary or Nationwide with respect to
the Nationwide Stations.
(p) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, E.F.M. Media Management, Inc., E.F.M.
Publishing, Inc., PAM Media, Inc., Archon Communications, Inc., Synergy
Broadcast Investment Enterprises, L.L.C., Worldstar, Inc., Multiverse
Networks L.L.C., Shanahan Broadcasting, Inc., (collectively, the "C&L
Audited Companies"), Nationwide, Premiere and Jacor Broadcasting of
Youngstown, Inc. filed, to be filed or incorporated by reference with
the Commission as part of the Registration Statement and the Prospectus
are independent public accountants with respect to the Company, the
Subsidiaries, the C&L Audited Companies, Premiere, Nationwide and Jacor
Broadcasting of Youngstown, Inc. as required by the Act. The
consolidated historical and PRO FORMA financial statements, together
with related schedules and notes, set forth in the Prospectus and the
Registration Statement comply as to form in all material respects with
the requirements of the Act. Such historical financial statements
fairly present the consolidated financial position of the Company, the
Subsidiaries, the C&L Audited Companies, Premiere, Nationwide and Jacor
Broadcasting of Youngstown, Inc. at the respective dates indicated and
the results of their operations and their cash flows for the respective
periods indicated, in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout such periods. Such
PRO FORMA financial statements have been prepared on a basis consistent
with such historical statements, except for the PRO FORMA adjustments
specified therein, and give effect to assumptions made on a reasonable
basis and present fairly the historical and proposed transactions
contemplated by the Prospectus and the Transaction Documents. The other
financial and statistical information and data included in the
Prospectus and in the Registration Statement, historical and PRO FORMA,
are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and
records of the Company, the C&L Audited Companies, Premiere, Nationwide
and Jacor Broadcasting of Youngstown, Inc.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company, any of the Subsidiaries or Nationwide
with respect to the Nationwide Stations have incurred any liabilities or
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<PAGE>
obligations, direct or contingent, which are material to the Company and
the Subsidiaries taken as a whole, nor entered into any transaction not
in the ordinary course of business and there has not been, singly or in
the aggregate, any material adverse change, or any development which
could reasonably be expected to involve a material adverse change, in
the properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company and the Subsidiaries
taken as a whole (a "Material Adverse Change").
(r) All tax returns required to be filed by the Company, any of the
Subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty
or interest.
(s) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in
connection with the transactions contemplated by the Transaction
Documents, except such as (i) may be required by the NASD, (ii) are
disclosed in the Prospectus or (iii) have been obtained and made under
the Act, the Exchange Act, the Trust Indenture Act of 1939, as amended
(the "TIA") or state securities or "Blue Sky" laws or regulations.
Neither the Company nor any of its affiliates is presently doing
business with the government of Cuba or with any person or affiliate
located in Cuba.
(t) (i) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
any of the Pending Transaction Parties with respect to the Pending
Properties, has all certificates, consents, exemptions, orders, permits,
licenses, authorizations, or other approvals (each, an "Authorization")
of and from, and has made all declarations and filings with, all
Federal, state, local and other governmental authorities (including the
Federal Communications Commission ("FCC")), all self-regulatory
organizations and all courts and other tribunals, necessary or required
to own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect,
(ii) all such Authorizations are valid and in full force and effect,
(iii) each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations and, to the knowledge of the Company, the
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Pending Transaction Parties with respect to the Pending Properties, is
in compliance in all material respects with the terms and conditions of
all such Authorizations and with the rules and regulations of the
regulatory authorities and governing bodies having jurisdiction with
respect thereto and (iv) each commercial radio broadcast station
identified in the Prospectus as owned and operated by any of the
Company, the Subsidiaries or Nationwide with respect to the Nationwide
Stations, or, to the knowledge of the Company, the Pending Transaction
Parties with respect to the Pending Properties, as applicable, is
operating with the maximum facilities specified by the Authorization
pertaining thereto.
(u) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding company" or a "subsidiary company" of a holding company,
or an "affiliate" thereof within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(v) No holder of any security of the Company has or will have any
right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
(w) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
possesses the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"Intellectual Property") presently employed by them in connection with
the businesses now operated by them, and none of the Company, the
Subsidiaries and Nationwide with respect to the Nationwide Stations,
and, to the knowledge of the Company, the Pending Transaction Parties
with respect to the Pending Properties, has received any notice of
infringement of or conflict with asserted rights of others with respect
to the foregoing which, singly or in the aggregate, could reasonably be
expected to result in any Material Adverse Change. The use of such
Intellectual Property in connection with the business and operations of
each of the Company, the Subsidiaries and Nationwide with respect to the
Nationwide Stations, and, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties does not, to
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the Company's knowledge, infringe on the rights of any person except
where any such infringement has not resulted in, or could not reasonably
be expected to result in any Material Adverse Change.
(x) Each certificate signed by any officer of any Registrant and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the applicable Registrant
to each Underwriter as to the matters covered thereby.
(y) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or
specific authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and
to maintain asset accountability; (3) access to assets is permitted only
in accordance with management's general or specific authorization; and
(4) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) The Company has not (i) taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or
which could reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or (ii) since the initial filing of
the Registration Statement (A) sold, bid for, purchased, or paid anyone
any compensation for soliciting purchases of, the Securities or (B) paid
or agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
(aa) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
maintains insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and its Subsidiaries and their businesses. None of the Company,
any Subsidiary and Nationwide with respect to the Nationwide Stations,
and, to the knowledge of the Company, the Pending Transaction Parties
with respect to the Pending Properties, has received notice from any
insurer or agent of such insurer that substantial capital improvements
or other expenditures will have to be made in order to continue such
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insurance. All such insurance is outstanding and duly in force on the
date hereof and will be outstanding and duly in force on the Closing
Date.
(bb) Neither the Company nor Nationwide with respect to the Nationwide
Stations has, directly or indirectly, paid or delivered any fee, commission
or other sum of money or item or property, however characterized, to any
finder, agent, government official or other party, in the United States or
any other country, which is in any manner related to the business or
operations of the Company or Nationwide with respect to the Nationwide
Stations, respectively, which the Company knows or has reason to believe to
have been illegal under any Federal, state or local laws of the United
States or any other country having jurisdiction; and neither the Company
nor Nationwide with respect to the Nationwide Stations has participated,
directly or indirectly, in any boycotts or other similar practices in
contravention of law affecting any of its actual or potential customers.
(cc) The Company does not own any "margin securities" as that term is
defined in Regulations G and U of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), and, except as disclosed in
the Prospectus, none of the proceeds of the sale of the Securities will be
used, directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or
for any other purpose which might cause any of the Securities to be
considered a "purpose credit" within the meanings of Regulation G, T, U or
X of the Federal Reserve Board.
(dd) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to a local
marketing agreement or a joint sales agreement (a "Licensee") has been
issued by the FCC an FCC license (which is in full force and effect) for
the operation of the commercial radio broadcast station identified in the
Prospectus as programmed by the Company or any of its Subsidiaries, which
licenses expire on the dates set forth in the Prospectus.
(ee) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to an
exclusive sales agency agreement (a "Mexican Licensee"), has been issued by
the Mexican government all necessary Mexican licenses (which are in full
force and effect) for the operation of the commercial radio broadcast
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station identified in the Prospectus as programmed by the Company or any of
its Subsidiaries. Each of the Company and its Subsidiaries have all
Authorizations necessary to deliver programming to the Mexican Licensees.
(ff) Each of the Company, its Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
filed with the FCC all material reports, documents, instruments,
information and applications required to be filed pursuant to the FCC's
rules, regulations and requests. No notice has been issued by the FCC
which could permit, or after notice or lapse of time or both could permit,
revocation or termination of any FCC license of any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or to the knowledge of the Company, of any of the Licensees
prior to the expiration dates thereof or which could reasonably be expected
to result in any other material impairment of any of the Subsidiaries', or
Nationwide with respect to the Nationwide Stations or its subsidiaries, or,
to the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries with respect to the Pending Properties, or, to the knowledge
of the Company, of any of the Licensees' rights thereunder and which could
reasonably be expected to, singly or in the aggregate, have a Material
Adverse Effect.
(gg) Each of the Company's radio and television stations (the
"Stations") is now operating, and has operated, in compliance in all
material respects with the Communications Act of 1934, as amended (the
"Communications Act"), and the published rules and regulations of the FCC.
There is not issued, outstanding or pending any Notice of Violation, Notice
of Apparent Liability, Order to Show Cause, material complaint or
investigation by or before the FCC which could materially threaten or
materially adversely affect any of the Company's or any of its
Subsidiaries', Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries' with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' FCC licenses or which could reasonably be
expected to result in any material adverse effect upon any of the Company's
Subsidiaries, Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' operation of its respective stations and
which could reasonably be expected to, singly or in the aggregate, have a
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Material Adverse Effect, nor does the Company have reason to believe that
the FCC licenses with respect to the Stations will not be renewed for a
full eight year term when such FCC licenses are due for renewal.
(hh) The execution, delivery and performance of the obligations by
the Company under this Agreement are not and will not be contrary to the
Communications Act, as amended, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
(ii) Other than for the divestiture of two radio stations in San
Diego, California as described in the Prospectus, the execution, delivery
and performance of the obligations by JCC, Citicasters Co. and Nationwide
(each, a "Nationwide Transaction Party" and, collectively, the "Nationwide
Transaction Parties") and, to the knowledge of the Company, by the Pending
Transaction Parties with respect to the Pending Properties to the extent
each is a party to the Transaction Documents are not and will not be
contrary to the Communications Act, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
Other than the applications relating to the divestiture of two radio
stations in San Diego, California, all necessary applications, exhibits or
other filings required by the FCC for transfer of control of the Stations
now controlled by the Pending Transaction Parties with respect to the
Pending Properties pursuant to the applicable Transaction Documents have
been filed with the FCC (the "Transfer Applications"). To the best of the
Company's knowledge, there are no circumstances that would cause the FCC to
reject the Transfer Applications.
(jj) The Nationwide Transaction Parties and, to the knowledge of the
Company, the Pending Transaction Parties, have, to the extent each is or
will be a party thereto, all requisite corporate power and authority to
execute, deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Nationwide Transaction
Parties and, to the knowledge of the Company, the Pending Transaction
Parties, to the extent each is a party thereto, and each constitutes a
valid and legally binding agreement of the Nationwide Transaction Parties
and, to the knowledge of the Company, the Pending Transaction Parties,
enforceable against each Nationwide Transaction Party or Pending
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Transaction Party, as applicable, in accordance with its terms; except as
set forth in the Prospectus, no consent, approval, authorization or order
of any court or governmental agency or body is required for the performance
of any of the Transaction Documents by each of the Nationwide Transaction
Parties or, to the knowledge of the Company, each Pending Transaction
Party, to the extent each is a party thereto, or the consummation by each
of the Nationwide Transaction Parties, or to the knowledge of the Company,
each of the Pending Transaction Parties, of any of the transactions
contemplated thereby, except such as may be required and have been
obtained, or upon effectiveness of the Registration Statement, will have
been obtained, under the Act, the Exchange Act, the TIA, or state
securities or "Blue Sky" laws or regulations or such as may be required by
the NASD in connection with the purchase and distribution of the Securities
by the Underwriters; and none of the Nationwide Transaction Parties, is (i)
in violation of its charter or bylaws, (ii) in violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or
any of their respective properties or assets, which violation would have a
Material Adverse Effect, or (iii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any of the Transaction Documents or any other contract, indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, permit, Authorizations, certificate or agreement or instrument
to which any of them is a party or to which any of them is subject, which
default would have a Material Adverse Effect.
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(kk) The execution, delivery and performance by the Nationwide
Transaction Parties, to the extent each is a party thereto, of each of the
Transaction Documents, and the consummation by the respective Nationwide
Transaction Parties of the transactions contemplated thereby, will not
violate, conflict with or constitute or result in a breach of or a default
under (or an event which, with notice or lapse of time, or both, would
constitute a breach of or a default under) any of (i) the terms or
provisions of any of the Transaction Documents or any other indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, or agreement or instrument to which a Nationwide Transaction
Party, is a party or to which any of their respective properties or assets
are subject, which violation, conflict, breach or default would have a
Material Adverse Effect, (ii) the charter or bylaws of the Nationwide
Transaction Party, or (iii) any statute, judgment, decree, order, rule or
regulation of any court, governmental agency or other body or self
regulatory organization applicable to each Nationwide Transaction Party, or
any of their respective properties or assets, which violation, conflict,
breach or default would have a Material Adverse Effect.
(ll) The Nationwide Acquisition has been duly authorized by the
Nationwide Transaction Parties and the transactions contemplated by the
Transaction Documents have been approved, to the extent required, by all
appropriate corporate action; approval of the transactions contemplated by
the Transaction Documents by the shareholders of the Company is not
required.
(mm) The Company has delivered to the Underwriters a true and
correct copy of each of the Transaction Documents that have been
executed and delivered prior to the date of this Agreement and each
other Transaction Document in the form substantially as it will be
executed and delivered, together with all related agreements and all
schedules and exhibits thereto, and there have been no amendments,
alterations, modifications or waivers of any of the provisions of any of
the Transaction Documents since their date of execution or from the form
in which it has been delivered to the Underwriters; there exists as of
the date hereof (after giving effect to the transactions contemplated by
the Transaction Documents) no event or condition which would constitute
a default or an event of default (in each case as defined in the Credit
Facility, the LYONs due 2011, the 10-1/8% Notes, the 9-3/4% Notes, the
8-3/4% Notes or the LYONs, respectively) under the Credit Facility, the
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LYONs due 2011, the 10-1/8% Notes, the 9-3/4% Notes, the 8-3/4% Notes or
the LYONs, respectively, and no event or condition which would
constitute a default or an event of default (in each case as defined in
each of the Transaction Documents) under any of the Transaction
Documents other than the Credit Facility, the LYONs due 2011, the 10-1/8%
Notes, the 9-3/4% Notes, the 8-3/4% Notes or the LYONs, which would
result in a Material Adverse Effect or materially adversely effect the
ability of each of the Company or Nationwide to consummate the
transactions contemplated by the Transaction Documents. For purposes of
this Agreement, "LYONS DUE 2011" means the liquid yield option notes due
2011 issued by the Company pursuant to an Indenture, dated as of June
12, 1996, by and between the Company and the Bank of New York; "10-1/8%
NOTES" means the 10-1/8% Senior Subordinated Notes due 2006 issued by
JCAC, Inc. (predecessor to JCC), pursuant to an Indenture, dated as of
June 12, 1996, by and among JCAC, Inc., the Company and First Trust of
Illinois, National Association; "9-3/4% NOTES" means the 9-3/4% Senior
Subordinated Notes due 2006 issued by JCC pursuant to an Indenture,
dated as of December 17, 1996, by and among JCC, the Company, the
Subsidiary Guarantors named therein and the Bank of New York; and "8-3/4%
NOTES" means the 8-3/4% Senior Subordinated Notes due 2007 issued
by JCC pursuant to an Indenture, dated as of June 11, 1997, by and among
JCC, the Company, the Subsidiary Guarantors named therein and the Bank
of New York.
(nn) The Company has filed with the Commission all filings that are
required to be filed as of the date hereof with respect to the financial
statements of each of the Nationwide Transaction Parties and each of the
Pending Transaction Parties in filings made under the Act and under the
Exchange Act, specifically as required by Rule 3-05 of Regulation S-X and
General Instructions and Item 7 of Form 8-K.
(oo) Each of the representations and warranties contained in each of
the Transaction Documents are true and correct on and as of the date
hereof, except as could not have a Material Adverse Effect.
(pp) The Company meets the requirements for registering an offering
of securities with the Commission on registration statement Form S-3
pursuant to the standards for those Forms prior to October 21, 1992.
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(qq) The LYONs have received a rating of B3 from Moody's Investors
Service ("Moody's"); and the Securities have received a rating of B2 from
Moody's.
(rr) Immediately after any sale of the Securities, the LYONs and the
Shares by the Company or JCC, as applicable, the aggregate amount of
securities that have been issued and sold by the Company or JCC, as
applicable, (including the Securities, the LYONs and the Shares) will not
exceed the amount of securities registered under the Registration
Statement.
6. INDEMNIFICATION.
(a) The Registrants, jointly and severally, agree to indemnify and
hold harmless (i) each of the Underwriters and (ii) each person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) any of the Underwriters (any of the persons
referred to in this clause (ii) being hereinafter referred to as a
"controlling person"), and (iii) the respective officers, directors,
partners, employees, representatives and agents of any of the
Underwriters or any controlling person (any person referred to in clause
(i), (ii) or (iii) may hereinafter be referred to as an "Indemnified
Person") to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees
and expenses of counsel to any Indemnified Person) directly or
indirectly caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be a part of the
Registration Statement or the Prospectus (including any amendment or
supplement thereto) or any preliminary prospectus, or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading, PROVIDED, HOWEVER, that (i) except insofar as such
losses, claims, damages, liabilities, judgments, actions or expenses are
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caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with
information relating to any of the Underwriters furnished in writing to
the Company by DLJ expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) or any preliminary prospectus, (ii) the foregoing indemnity
agreement with respect to any untrue statement contained in or omission
from a preliminary prospectus shall not inure to the benefit of the
Underwriter from whom the person asserting any such losses, liabilities,
claims, damages or expenses purchased Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf
of the Underwriters to such person, if such is required by law, at or
prior to the written confirmation of the sale of such Securities to such
person and the untrue statement contained in or omission from such
preliminary prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented). The Company shall notify you
promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves
the Company or an Indemnified Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the
Indemnified Persons with respect to which indemnity may be sought
against the Registrants, such Underwriter (or the Underwriter controlled
by such controlling person) shall promptly notify the Company in writing
(provided, that the failure to give such notice shall not relieve the
Registrants of their obligations pursuant to this Agreement). Such
Indemnified Person shall have the right to employ its own counsel in any
such action and the fees and expenses of such counsel shall be paid, as
incurred, by the Registrants (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder). The Registrants shall not, in connection with any one such
action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for such Indemnified Persons, which firm
shall be designated by DLJ. The Registrants shall be liable for any
settlement of any such action or proceeding effected with the Company's
prior written consent, which consent will not be unreasonably withheld,
and the Registrants, jointly and severally, agree to indemnify and hold
harmless any Indemnified Person from and against any loss, claim,
damage, liability or expense by reason of any settlement of any action
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<PAGE>
effected with the written consent of the Company. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have
requested the Registrants to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the second sentence of this
paragraph, the Registrants, jointly and severally, agree that they shall
be liable for any settlement of any proceeding effected without the
Company's written consent if (i) such settlement is entered into more
than 10 business days after receipt by the Company of the aforesaid
request, and (ii) the Registrants shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement. The Registrants shall not, without the prior written
consent of each Indemnified Person, settle or compromise or consent to
the entry of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
any Indemnified Person is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of
each Indemnified Person from all liability arising out of such action,
claim, litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Registrants, their directors, their
officers who sign the Registration Statement, any person controlling
(within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Registrants, and the officers, directors, partners,
employees, representatives and agents of each such person, to the same
extent as the foregoing indemnity from the Registrants to each of the
Indemnified Persons, but only with respect to claims and actions based
on information relating to such Underwriter furnished in writing by DLJ
expressly for use in the Prospectus.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities, judgments, actions and expenses (i) in such proportion as
is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other hand from the offering of the 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
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indemnifying parties and the indemnified party, as well as any other
relevant equitable considerations. The relative benefits received by
the Registrants, on the one hand, and any of the Underwriters, on the
other hand, shall be deemed to be in the same proportion as the total
proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Registrants
bear to the total underwriting discounts and commissions received by
such Underwriter, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Registrants and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the Registrants or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
indemnity and contribution obligations of the Registrants set forth
herein shall be in addition to any liability or obligation the
Registrants may otherwise have to any Indemnified Person.
The Registrants and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined
by PRO RATA allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities, judgments, actions or
expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, none of the Underwriters (and its related
Indemnified Persons) shall be required to contribute any amount in excess
of the amount by which the total underwriting discount applicable to the
Securities underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 6(d)
are several in proportion to the respective number of Securities purchased
by each of the Underwriters hereunder and not joint.
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The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Securities under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Registrants
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date. The Company shall have performed or complied with all of its
obligations and agreements herein contained and required to be performed
or complied with by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule
430A promulgated under the Act, such post-effective amendment shall have
become effective) not later than 10:00 A.M. (and in the case of a
Registration Statement filed under Rule 462(b) of the Act, not later
than 10:00 P.M.), New York City time, on the date of this Agreement or
at such later date and time as you may approve in writing, (ii) at the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or
contemplated by the Commission and every request for additional
information on the part of the Commission shall have been complied with
in all material respects, and (iii) no stop order suspending the sale of
the Securities in any jurisdiction referred to in Section 4(g) shall
have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, prevent the
issuance of the Securities, the LYONs, or the Shares; and no injunction,
restraining order or order of any nature by a Federal or state court of
competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance of the Securities or the consummation
of the transactions contemplated by the Transaction Documents.
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(d) (i) Since the date hereof or since the dates as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Change, (ii) since the
date of the latest balance sheet included, or incorporated by reference,
in the Registration Statement and the Prospectus, there shall not have
been any material change in the capital stock or long-term debt, or
material increase in short-term debt, of the Company or any of the
Subsidiaries taken as a whole and (iii) the Company and the Subsidiaries
taken as a whole, shall have no liability or obligation, direct or
contingent, that is material to the Company and the Subsidiaries taken
as a whole, respectively, and is required to be disclosed on a balance
sheet in accordance with GAAP and is not disclosed on the latest
applicable balance sheet included in the Registration Statement and the
Prospectus.
(e) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Vice President and a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 7.
(f) On the Closing Date, you shall have received:
(1) an opinion (satisfactory to you and your counsel), dated
the Closing Date, of Graydon, Head & Ritchey, counsel for the Company,
(which opinion shall, in regards to any matters covered by the law of
the States of Colorado, Florida or Georgia, rely on the opinion of
Colorado, Florida or Georgia counsel, respectively, reasonably
acceptable to the Underwriters) to the effect that:
(i) (A) the Company and each of the Subsidiaries is a
duly organized and validly existing corporation in good standing
under the laws of its jurisdiction of incorporation, has the
requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified as
a foreign corporation and in good standing in each jurisdiction
where the ownership, leasing or operation of property or the
conduct of its business requires such qualification, except where
the failure to be so qualified could not be reasonably expected to
have, singly or in the aggregate, a Material Adverse Effect; and
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(B) the Company has the requisite corporate power and authority to
execute, deliver and perform this Agreement;
(ii) the Transaction Documents have been duly authorized,
executed and delivered by the Registrants, as applicable;
(iii) the authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under
"Capitalization";
(iv) all of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, and the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or
through Subsidiaries, by the Company, and are owned free and clear
of any Lien, except for Liens pursuant to the Credit Facility;
(v) to the knowledge of such counsel (after due inquiry)
there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or Liens related
to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, any
Subsidiary except as disclosed in the Prospectus;
(vi) neither the Company nor any of the Subsidiaries is
(A) an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act
of 1940, as amended, or (B) a "holding company" or a "subsidiary
company" of a holding company, or an "affiliate" thereof within the
meaning of the Public Utility Holding Company Act of 1935, as
amended;
(vii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities, the LYONs or the Shares will violate
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System;
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(viii) when authenticated in accordance with the terms of
the respective indenture and delivered to and paid for in
accordance with the terms of the respective underwriting agreement,
the Securities and the LYONs will constitute valid and legally
binding obligations of the Registrants and the Company,
respectively, enforceable against the Registrants and the Company,
respectively, in accordance with their respective terms and
entitled to the benefits of the respective indenture, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law
or in equity) and except to the extent that a waiver of rights
under any usury laws may be unenforceable;
(ix) the Indenture, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and
legally binding agreement of the Registrants, respectively,
enforceable against the Registrants, in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles
of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that a
waiver of rights under any usury laws may be unenforceable;
(x) the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(xi) to the best knowledge of such counsel, there is no
current, pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary or to which any
of their respective properties is subject of a character required
to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus;
(xii) the descriptions in the Registration Statement and
the Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material respects
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<PAGE>
and fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings
required to be described in the Registration Statement or
Prospectus which are not described as required or of any contracts
or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no
opinion as to the financial statements, notes or schedules or other
financial data included therein;
(xiii) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements
and term sheets thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and
to the knowledge of such counsel (after due inquiry) no stop order
suspending the effectiveness of the Registration Statement or any
part thereof has been issued and no proceedings therefor have been
instituted or are pending or contemplated under the Act; and the
Indenture has been duly qualified under the TIA;
(xiv) no authorization, approval, consent or order of, or
filing with, any court or governmental body or agency is required
for the consummation by the Company of the transactions
contemplated by the Agreement, except such as have been obtained
and made under the Act, the Exchange Act, the TIA, state securities
or "Blue Sky" laws or regulations or such as may be required by the
NASD; no authorization, approval, consent or order of, or filing
with, any court or governmental body or agency is required for the
consummation by the Registrants, as applicable, or Nationwide with
respect to the Nationwide Stations, of the transactions
contemplated by the applicable Transaction Documents, except as
disclosed in the Prospectus; the execution and delivery of this
Agreement and the Indenture, the issuance and sale of the
Securities, the performance of this Agreement and the consummation
of the transactions contemplated by this Agreement will not result
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in a breach or violation of any of (A) any of the respective
charters or bylaws of the Company or any of the Subsidiaries or (B)
to the knowledge of such counsel (after due inquiry), the terms or
provisions of any agreement or instrument which is filed as an
exhibit to the Registration Statement and to which the Company or
any of the Subsidiaries is a party or by which any of them is
bound, or to which any of the properties of the Company or any of
the Subsidiaries is subject, or (C) to the knowledge of such
counsel (after due inquiry) constitute a default under, any
statute, rule or regulation to which the Company or any Subsidiary
is bound or to which any of the properties of the Company or any
Subsidiary is subject or (D) any order of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties which conflict, breach or
default in each of the cases described in clauses (B), (C) and (D)
could reasonably be expected to have a Material Adverse Effect;
(xv) at the time it became effective and on the Closing
Date, the Registration Statement complied as to form in all
material respects with the Act;
(xvi) to the knowledge of such counsel, neither the Company
nor the Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to the
Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to result in a Material Adverse Change. The
use of such Intellectual Property in connection with the business
and operations of the Company and the Subsidiaries does not, to the
knowledge of such counsel, infringe on the rights of any person;
(xvii) to the best knowledge of such counsel, (A) there are
no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments to which the Company, any of the
Subsidiaries or Nationwide with respect to the Nationwide Stations
are a party or by which any of them may be bound that are required
to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement other than
those described therein or filed as exhibits thereto and (B) no
default exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described or filed in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
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Statement, or any agreement identified on a schedule attached to
the opinion, except for defaults which could not reasonably be
expected to have a Material Adverse Effect;
(xviii) the Company, the Subsidiaries and, to the knowledge
of such counsel, Nationwide, to the extent each is a party thereto,
have full corporate power and authority to execute, deliver and
perform its respective obligations under the applicable Transaction
Documents;
(xix) the Transaction Documents, assuming the
authorization, execution and delivery thereof by the parties other
than the Registrants, as applicable, and Nationwide, constitute
valid and legally binding agreements of the respective parties
thereto enforceable against each of the parties, to the extent each
is a party thereto, in accordance with their respective terms
subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally
and to principles of equity (regardless of whether enforcement is
sought in a proceeding at law or equity) and except to the extent
that a waiver of rights under usury laws may be unenforceable; and
(xx) the approval of the transactions contemplated by the
Transaction Documents by the stockholders of the Company is not
required.
(2) Such counsel shall additionally state that such counsel
has participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants
for the Company, your representatives and your counsel in connection
with the preparation of the Registration Statement and Prospectus and
has considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of such
statements (except as indicated above); and such counsel advises you
that, on the basis of the foregoing, no facts came to such counsel's
attention that caused such counsel to believe that the Registration
Statement (as amended or supplemented, if applicable), at the time such
Registration Statement or any post-effective amendment became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading (other than information omitted
therefrom in reliance on Rule 430A under the Act), or the Prospectus (as
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amended or supplemented), as of its date and the Closing Date, contained
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may further state that the firm
assumes no responsibility for, and the firm has not independently
verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data included in the
Registration Statement.
(3) An opinion (satisfactory to you and your counsel), dated
the Closing Date of Hogan & Hartson, L.L.P., counsel for the Company
with respect to FCC and related matters to the effect that:
(i) those statements in the Prospectus (including the
statements incorporated by reference in the Prospectus, under the
caption "Business -- Federal Regulation of Radio Broadcasting" in
the Company's Form 10-K filed for the year ended December 31, 1996)
that describe provisions of the Communications Act of 1934, as
amended (the "Communications Act"), and the FCC's published rules
or regulations (for purposes of this opinion only, the "Rules") are
accurate descriptions in all material respects.
(ii) Schedule 1 to this opinion sets forth a complete list
of the main station authorizations issued by the FCC to the Company
and its Subsidiaries (for purposes of this opinion only, the
"Licenses"). To such counsel's knowledge, the Licenses are the
only licenses, permits or authorizations required under the
Communications Act for the broadcast of signals on the main station
frequency of each of the radio stations listed on Schedule 2 (for
purposes of this opinion only, the "Jacor Stations"). Except for
the pending applications noted on Schedule 1 hereto, the Licenses
are in full force and effect (and the time within which any
administrative or judicial appeal, reconsideration, rehearing or
other review might be sought has lapsed with respect to the grant
of the authorizations for the currently effective terms, and no
such appeal, reconsideration, rehearing, or other review has been
taken or instituted), and are held by the relevant Subsidiary as
set forth on Schedule 1 hereto, and the expiration date of each
License is set forth in Schedule 1 hereto. Except as indicated on
Schedule 3 to this opinion, the Licenses are not subject to any
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conditions imposed by the FCC other than those that appear on the
Licenses or are customarily imposed by the FCC on radio stations of
the same class and type.
(iii) Except as listed in Schedule 4 hereto, there is no
proceeding or other administrative action pending or, to such
counsel's knowledge, threatened, before the FCC against the Company
or any Subsidiary, which, if adversely determined, would materially
and adversely affect the business or financial condition of the
Company and its Subsidiaries, taken as a whole. To such counsel's
knowledge, except as listed on Schedule 5 to this opinion, the
Company and the Subsidiaries have filed with the FCC during the
current license term of each License all material reports and forms
required to be filed by the Company and the Subsidiaries with the
FCC with respect to the Jacor Stations.
(iv) The execution and delivery by the Company and any
Subsidiary of the Transaction Documents, and the performance of the
obligations as of the date hereof by the Company under the
Underwriting Agreement and the Indenture, (i) do not violate the
Communications Act, (ii) do not violate any of the Rules, (iii) do
not violate the terms of any of the Licenses, (iv) do not cause any
forfeiture or impairment of any License and (v) do not require any
consent, approval or authorization of the FCC that has not been
obtained; except that since we lack actual knowledge regarding the
citizenship and other media interests of the purchasers of the
Shares, we do not express any opinion with respect to compliance
with multiple ownership and foreign ownership requirements under
the Communications Act and the FCC Rules or with respect to the
FCC's cross-interest policy (which such policy is summararized at 4
FCC Rcd 2035 (1989)). Except as indicated on Schedule 6, all
necessary applications required by the FCC as of the date hereof
for the transfer of control or assignment of the licenses of the
stations described in the Prospectus under "Pending Radio Station
Transactions" have been filed with the FCC.
(4) An opinion (satisfactory to you and your counsel), dated
the Closing Date of Paul, Hastings, Janofsky & Walker LLP, counsel for the
Company, to the effect that:
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<PAGE>
(i) when authenticated in accordance with the terms of
the Indenture and delivered to and paid for in accordance with the
terms of this Agreement, the Guarantee and the Securities will
constitute valid and legally binding obligations of the Guarantors
and JCC, respectively, enforceable against the Guarantors and JCC,
in accordance with their respective terms and entitled to the
benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity) and except to the
extent that a waiver of rights under any usury laws may be
unenforceable; and
(ii) the Indenture, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and
legally binding agreement of the Registrants, enforceable against
each of the Registrants, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law
or in equity) and except to the extent that a waiver of rights.
under any usury laws may be unenforceable
(g) You shall have received an opinion, dated the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"), counsel for
the Underwriters, in form and substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date
hereof as well as on and as of the Closing Date (in the latter case
constituting an affirmation of the statements set forth in the former),
in form and substance satisfactory to you, from Coopers & Lybrand
L.L.P., Ernst & Young LLP and KPMG Peat Marwick, independent public
accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters,
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus
for each of (i) the Company and the C&L Audited Companies, (ii)
Premiere, and (iii) Nationwide, respectively.
39
<PAGE>
(i) Skadden Arps shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 7 and in order to evidence the
accuracy, completeness or satisfaction in all material respects of any
of the representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
(k) At the Closing Date, the LYONs and the Shares shall have been
approved for quotation on the Nasdaq Stock Market's SmallCap Market and
Nasdaq National Market, respectively, subject to notice of issuance.
(l) There shall have been no amendments, alterations,
modifications, or waivers of any provisions of the Transaction Documents
since the date of the execution and delivery thereof by the parties
thereto other than those which under the Act are not required to be
disclosed in the Prospectus or any supplement thereto and which have
been disclosed to the Underwriters prior to the date hereof.
(m) Each of the Registrants, as applicable, and Nationwide shall,
to the extent each is a party thereto, have complied in all respects
with all agreements and covenants in the Transaction Documents and
performed all conditions specified therein that the terms thereof
require to be complied with or performed at or prior to the date hereof.
(n) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have completed the LYONs
Offering and the Shares Offering.
(o) Except as is disclosed to the Underwriters in writing, the
representations and warranties of the Registrants, as applicable, and
Nationwide set forth in the Transaction Documents shall be true,
accurate and complete in all respects.
(p) Prior to the Closing Date, the Company shall have obtained the
determination of the Administrative Agent (as that term is defined in
40
<PAGE>
the Credit Facility) pursuant to Section 6.11(g) of the Credit Facility
that the Securities are substantially similar to the 10-1/8% Notes, the
9-3/4% Notes and the 8-3/4% Notes.
(q) The Registrants shall not have failed on or prior to the
Closing Date to perform or comply with any of the agreements contained
herein.
8. DEFAULTS. If on the Closing Date any of the Underwriters shall
fail or refuse to purchase Securities, which it has agreed to purchase
hereunder on such date, and the aggregate amount of Securities that such
defaulting Underwriter(s) agreed but failed or refused to purchase does not
exceed 10% of the total aggregate principal amount of Securities to be
purchased on such date by all of the Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the amount
of such Securities set forth opposite its name in Schedule I hereto bears to
the aggregate principal amount of Securities which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Securities that such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed
or refused to purchase on such date; PROVIDED that in no event shall the
aggregate principal amount of Securities that any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 8
by an amount in excess of one-ninth of such principal amount of Securities
without the written consent of such Underwriter. If, on the Closing Date,
any of the Underwriters shall fail or refuse to purchase the Securities with
respect to which such default exceeds 10% of the total aggregate principal
amount of Securities to be purchased on such date by all Underwriter(s) and
arrangements satisfactory to the other Underwriter(s) and the Registrants for
the purchase of such Securities are not made within 48 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Underwriter(s) or the Registrants, except as otherwise
provided in this Section 8. In any such case that does not result in
termination of this Agreement, the Underwriters or the Registrants may
postpone the Closing Date for not longer than seven (7) days, in order that
the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve a defaulting Underwriter
from liability in respect of any default by any such Underwriter under this
Agreement.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the later of (i) the execution and delivery of
this Agreement by the parties hereto, (ii) the effectiveness of the
Registration Statement, and (iii) if a post-effective amendment is required
to be filed pursuant to Rule 430A under the Act, the effectiveness of such
post-effective amendment.
41
<PAGE>
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change occurs
which, in the judgment of any Underwriter, make it impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
(ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere, or any other substantial
national or international calamity or emergency if the effect of such outbreak,
escalation, calamity, crisis, change or emergency would, in the judgment of any
Underwriter, make it impracticable or inadvisable to market the Securities on
the terms and in the manner contemplated by the Prospectus, (iii) any suspension
or limitation of trading generally in securities on the New York Stock Exchange,
the American Stock Exchange, the Nasdaq Stock Market or in the over-the-counter
markets or any setting of minimum prices for trading on such exchanges or
markets, (iv) any declaration of a general banking moratorium by Federal, New
York or Kentucky authorities, (v) the taking of any action by any Federal, state
or local government or agency in respect of its monetary or fiscal affairs that
in your judgment has a material adverse effect on the financial markets in the
United States, and would, in your judgment, make it impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
(vi) the enactment, publication, decree, or other promulgation of any Federal or
state statute, regulation, rule or order of any court or other governmental
authority which, in your judgment, materially and adversely affects or will
materially and adversely affect the business or operations of the Company or any
Subsidiary, or (vii) any securities of the Company or any of the Subsidiaries
shall have been downgraded or placed on any "watch list" for possible
downgrading by any nationally recognized statistical rating organization,
PROVIDED, that in the case of such "watch list" placement, termination shall be
permitted only if such placement would, in the judgment of any Underwriter, make
it impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities or materially impair the investment quality of
the Securities.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Company, its officers and directors and of
the Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Securities and payment
for them hereunder and (iii) termination of this Agreement.
42
<PAGE>
If this Agreement shall be terminated by the Underwriters pursuant to
clauses (i) or (vii) of the second paragraph of this Section 10 or because of
the failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
you for all out-of-pocket expenses (including the fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement,
the Company shall be liable for all expenses which it has agreed to pay pursuant
to Section 4(k) hereof.
10. NOTICES. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to it at
Jacor Communications, Inc., 50 East RiverCenter Boulevard, 12th Floor,
Covington, Kentucky 41011, Attention: Randy Michaels, Chief Executive
Officer, fax (606) 655-9345, with a copy to Graydon, Head & Ritchey, 1900
Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202, Attention:
Richard G. Schmalzl, Esq., and (b) if to any Underwriter, to Donaldson,
Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York, New York
10172 Attention: Syndicate Department, and, in each case, with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP at 300 South Grand Avenue, Suite
3400, Los Angeles, California 90071, Attention: Gregg A. Noel, Esq., or in
any case to such other address as the person to be notified may have
requested in writing.
11. SEVERABILITY. Any determination that any provision of this
Agreement may be, or is, unenforceable shall not affect the enforceability of
the remainder of this Agreement.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN
THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING
RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY,
IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY, ON
43
<PAGE>
BEHALF OF ITSELF AND THE SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
13. SUCCESSORS. Except as otherwise provided, this Agreement has
been and is made solely for the benefit of and shall be binding upon the
Company, the Underwriters, any Indemnified Person referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or
by virtue of this Agreement. The terms "successors and assigns" shall not
include a purchaser of any of the Securities from any of the Underwriters
merely because of such purchase.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in one or more counterpart, the executed
counterparts shall each be deemed to be an original, not all such
counterparts shall together constitute one and the same instrument.
15. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to effect the meaning
or interpretation of, this Agreement.
16. SURVIVAL. The indemnities and contribution provisions and the
other agreements, representations and warranties of the Company, its officers
and directors and of the Underwriter set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Securities, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf
of the Underwriter or by or on behalf of the Company, the officers or
directors of the Company or any controlling person of the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
44
<PAGE>
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
JACOR COMMUNICATIONS, INC.
By: /s/ R. Christopher Weber
--------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Chief Financial Officer
JACOR COMMUNICATIONS
COMPANY
By: /s/ R. Christopher Weber
--------------------------------
Name: R. Christopher Weber
Title: Senior Vice President,
Chief Financial Officer
and Secretary
45
<PAGE>
BROADCAST FINANCE, INC.; CINE FILMS, INC.; CINE GUARANTORS, INC.; CINE
GUARANTORS II, INC.; CINE GUARANTORS II, LTD.; CINE MOBILE SYSTEMS INT'L. N.V.;
CINE MOVIL S.A. DE C.V.; CITICASTERS CO.; GACC-N26LB, INC.; GREAT AMERICAN
MERCHANDISING GROUP, INC.; GREAT AMERICAN TELEVISION PRODUCTIONS, INC.;
INMOBILIARIA RADIAL, S.A. DE C.V.*; JACOR BROADCASTING CORPORATION; JACOR
BROADCASTING OF ATLANTA, INC.; JACOR BROADCASTING OF CHARLESTON, INC.; JACOR
BROADCASTING OF COLORADO, INC.; JACOR BROADCASTING OF DENVER, INC.; JACOR
BROADCASTING OF FLORIDA, INC.; JACOR BROADCASTING OF KANSAS CITY, INC.; JACOR
BROADCASTING OF LAS VEGAS, INC.; JACOR BROADCASTING OF LAS VEGAS II, INC.; JACOR
BROADCASTING OF LOUISVILLE, INC.; JACOR BROADCASTING OF LOUISVILLE II, INC.;
46
<PAGE>
JACOR BROADCASTING OF SALT LAKE CITY, INC.; JACOR BROADCASTING OF SALT LAKE CITY
II, INC.; JACOR BROADCASTING OF ST. LOUIS, INC.; JACOR BROADCASTING OF SAN
DIEGO, INC.; JACOR BROADCASTING OF SARASOTA, INC.; JACOR BROADCASTING OF TAMPA
BAY, INC.; JACOR BROADCASTING OF TOLEDO, INC.; JACOR BROADCASTING OF YOUNGSTOWN,
INC.; JACOR CABLE, INC.; JACOR LICENSEE OF CHARLESTON, INC.; JACOR LICENSEE OF
KANSAS CITY, INC., JACOR LICENSEE OF LAS VEGAS, INC.; JACOR LICENSEE OF LAS
VEGAS II, INC.; JACOR LICENSEE OF LOUISVILLE, INC.; JACOR LICENSEE OF LOUISVILLE
II, INC.; JACOR LICENSEE OF SALT LAKE CITY, INC.; JACOR LICENSEE OF SALT LAKE
CITY II, INC.; JACOR/PREMIERE HOLDING, INC.; JBSL, INC.; LOCATION PRODUCTIONS,
INC.; LOCATION PRODUCTIONS II, INC.; MULTIVERSE ACQUISITION CORP.**; NOBLE
BROADCAST CENTER, INC.; NOBLE BROADCAST GROUP, INC.; NOBLE BROADCAST HOLDINGS,
INC.; NOBLE BROADCAST LICENSES, INC.; NOBLE BROADCAST OF SAN DIEGO, INC.;
NOBRO, S.C*.; NOVA MARKETING GROUP, INC.; NSN NETWORK SERVICES, LTD.; PREMIERE
RADIO NETWORKS, INC.**; RADIO-ACTIVE MEDIA, INC.; SPORTS RADIO BROADCASTING,
INC.; SPORTS RADIO, INC.; THE SY FISCHER COMPANY AGENCY, INC.;VTTV PRODUCTIONS;
AND WHOK, INC.
By: /s/ R. Christopher Weber
--------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary for all
above companies except
those marked with an *,
of which he is Treasurer,
those marked with an **,
of which he is Senior
Vice President
47
<PAGE>
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CHASE SECURITIES INC.
Acting on behalf of themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Michael Hooks
---------------------------------
Name: Michael Hooks
Title: Managing Director
48
<PAGE>
SCHEDULE 1
AMOUNT OF
SECURITIES TO
UNDERWRITERS BE PURCHASED
- ------------- --------------
Donaldson, Lufkin & Jenrette
Securities Corporation...................... $ 84,000,000
Chase Securities Inc. ........................... $ 36,000,000
-------------
Total ...................................... $120,000,000
=============
49
<PAGE>
JACOR COMMUNICATIONS, INC.
(a Delaware corporation)
$383,573,000 Principal Amount At Maturity
Liquid Yield Option-TM- Notes Due 2018
(Zero Coupon - Senior)
PURCHASE AGREEMENT
February 3, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1305
Dear Sirs:
Jacor Communications, Inc., a Delaware corporation (the "Company")
and Jacor Communications Company ("JCC"); Broadcast Finance, Inc.; Cine
Films, Inc.; Cine Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors
II, Ltd.; Cine Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.;
Citicasters Co.; GACC-N26LB, Inc.; Great American Merchandising Group, Inc.;
Great American Television Productions, Inc.; Inmobilaria Radial, S.A. de
C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.;
Jacor Broadcasting of Charleston, Inc.; Jacor Broadcasting of Colorado, Inc.;
Jacor Broadcasting of Denver, Inc.; Jacor Broadcasting of Florida, Inc.;
Jacor Broadcasting of Kansas City, Inc.; Jacor Broadcasting of Las Vegas,
Inc.; Jacor Broadcasting of Las Vegas II; Jacor Broadcasting of Louisville,
Inc.; Jacor Broadcasting of Louisville II, Inc.; Jacor Broadcasting of Salt
Lake City, Inc.; Jacor Broadcasting of Salt Lake City II, Inc.; Jacor
Broadcasting of St. Louis, Inc.; Jacor Broadcasting of San Diego, Inc.; Jacor
Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Tampa Bay, Inc.; Jacor
Broadcasting of Toledo, Inc.; Jacor Broadcasting of Youngstown, Inc.; Jacor
Cable, Inc.; Jacor Licensee of Charleston, Inc.; Jacor Licensee
_____________________________
- -TM- Trademark of Merrill Lynch & Co., Inc.
<PAGE>
of Kansas City, Inc.; Jacor Licensee of Las Vegas, Inc.; Jacor Licensee of
Las Vegas II, Inc.; Jacor Licensee of Louisville, Inc.; Jacor Licensee of
Louisville II, Inc.; Jacor Licensee of Salt Lake City, Inc.; Jacor Licensee
of Salt Lake City II, Inc.; Jacor/Premiere Holding, Inc.; JBSL, Inc.;
Location Productions, Inc.; Location Productions II, Inc.; Multiverse
Acquisition Corp.; Noble Broadcast Center, Inc.; Noble Broadcast Group, Inc.;
Noble Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble
Broadcast of San Diego, Inc.; Nobro, S.C.; Nova Marketing Group, Inc.; NSN
Network Services, Ltd.; Premiere Radio Networks, Inc.; Radio-Active Media,
Inc.; Sports Radio Broadcasting, Inc.; Sports Radio, Inc.; The Sy Fischer
Company Agency, Inc.;VTTV Productions; and WHOK, Inc. each a direct or
indirect subsidiary of the Company or any successor entity, whether by
merger, consolidation, change of name or otherwise (collectively, the
"Subsidiaries" and together with the Company, the "Registrants") confirm
their agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated (the "Underwriter"), with respect to the sale by the
Company and the purchase by the Underwriter of $383,573,000 aggregate
principal amount at maturity of its Liquid Yield Option-TM- Notes due 2018
(the "LYONs-TM-") and with respect to the grant by the Company to the
Underwriter of the option described in Section 2 hereof to purchase all or
any part of an additional $43,344,000 aggregate principal amount at maturity
of its LYONs solely to cover over-allotments. The aforesaid aggregate
principal amount at maturity of LYONs (the "Initial Securities") and all or
any part of the $43,344,000 aggregate principal amount at maturity of the
LYONs subject to the over-allotment option described in Section 2 hereof (the
"Option Securities") are collectively referred to herein as the "Securities."
The Securities are to be issued pursuant to an indenture, to be dated as of
February 9, 1998, as it may be amended or supplemented from time to time
(the "Indenture"), between the Company and The Bank of New York, as trustee
(the "Trustee").
The Securities are convertible into shares of common stock, $.01
par value per share, of the Company (the "Common Stock"), at any time before
the close of business on the maturity date of the Securities. On February 9,
2003, February 9, 2008 and February 9, 2013 the holders of the Securities
each have the option to require the Company to purchase such Securities by
paying the issue price of the Securities plus the accrued original issue
discount to the date of purchase, such payment to be made, at the option of
the Company, in cash, in shares of Common Stock or any combination thereof.
Prior to the purchase and public offering of the Securities by the
Underwriter, the Company and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written
2
<PAGE>
telecommunication between the Company and the Underwriter and shall specify
such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be
deemed to incorporate the Pricing Agreement.
The Registrants have filed with the Securities and Exchange
Commission (the "Commission"), a "shelf" registration statement on Form S-3
(No. 333-40127), including a prospectus, relating to debt securities,
preferred stock, depository shares and common stock and a related preliminary
prospectus supplement for the registration of the offering of the Securities
including the Common Stock issuable upon conversion thereof under the
Securities Act of 1933, as amended (the "Act"), has filed such amendments
thereto, if any, and such amended preliminary prospectuses as may have been
required to the date hereof, and will file such additional amendments thereto
and such amended prospectuses as may hereafter be required. Such
registration statement (as amended, if applicable) and the prospectus
constituting a part thereof (including any prospectus supplement and
including in each case all documents, if any, incorporated by reference
therein and the information, if any, deemed to be part thereof pursuant to
Rule 430A(b) of the rules and regulations of the Commission under the Act
(the "Act Regulations")), as from time to time amended or supplemented
pursuant to the Act, are hereinafter referred to as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Underwriter by the Company for use in
connection with the offering of the Securities including the Common Stock
issuable upon conversion thereof which differs from the Prospectus on file at
the Commission at the time the Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b) of the Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriter for such use.
The Company understands that the Underwriter proposes to make a
public offering of the Securities as soon as the Underwriter deems advisable
after the Registration Statement becomes effective, the Pricing Agreement has
been executed and delivered and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "TIA").
The Securities are being issued and sold to fund, in part, the
consideration to be paid by the Company under the Nationwide Agreement (as
defined below). Alternatively and pending such uses, the Company intends to
use the net proceeds for general corporate purposes, including acquisitions
of other broadcast
3
<PAGE>
properties and broadcast related businesses and to repay in part outstanding
indebtedness under the revolving credit component of the Credit Facility
(defined below).
The Pending Transactions (as such term is defined in the
Prospectus) include, among other things, the acquisition (the "Nationwide
Acquisition") of 17 radio stations (the "Nationwide Stations") from
Nationwide (as defined below) pursuant to an Agreement of Sale (the
"Nationwide Agreement") dated as of December 19, 1997, by and among JCC,
Citicasters Co. and Nationwide Communications, Inc., Nationwide Mutual
Insurance Company, Employers Insurance of Wasau, San Diego Lotus Corp. and
The Beak and Wire Corporation (collectively, "Nationwide").
Prior to or concurrently with the issuance and sale of the
Securities, the Company and JCC, as applicable will (i) issue and sell
4,560,000 shares of Common Stock (excluding 513,000 shares of Common
Stock which is subject to an over-allotment option) and (ii) issue and sell
$120.0 million aggregate principal amount of 8% Senior Subordinated Notes
due 2010 (the "Sub Notes"). This Purchase Agreement and all agreements and
documents executed in connection with the Pending Transactions and all
documents and agreements related to each of the offering of the Sub Notes
(the "Sub Notes Offering") and the offering of the Shares (the "Shares
Offering") are collectively referred to herein as the "Transaction
Documents."
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Registrants represent
and warrant to the Underwriter as of the date hereof and as of the date of
the Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") as follows:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus (if
different) and at the Closing Date, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date of
any such supplements or amendments and at the Closing Date contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements in or omissions from the Registration Statement or the
Prospectus (or any supplement or amendment to them) made in reliance upon
and in conformity
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with information relating to the Underwriter furnished to
the Registrants in writing by or on behalf of the Underwriter expressly for
use therein. The Registrants acknowledge for all purposes under this
Agreement that the statements with respect to price and underwriting
discount and the last paragraph all as set forth on the cover page and the
second and third sentences of the first paragraph, paragraph four, the
first sentence of paragraph six, and paragraphs eight, nine, ten and twelve
under the caption "Underwriting" in the Prospectus (or any amendment or
supplement) constitute the only written information furnished to the
Registrants by the Underwriter expressly for use in the Registration
Statement or the Prospectus (or any amendment or supplement to them) and
that the Underwriter shall not be deemed to have provided any other
information (and therefore is not responsible for any such statement or
omission).
(b) Any term sheet and prospectus subject to completion provided by
the Registrants to the Underwriter for use in connection with the offering
and sale of the Securities pursuant to Rule 434 under the Act together are
not materially different from the Prospectus included in the Registration
Statement.
(c) Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each Registration
Statement filed pursuant to Rule 462(b) under the Act, if any, complied
when so filed in all material respects with the Act.
(d) The Company and each of its Subsidiaries has been duly organized,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of organization and has the requisite corporate power and
authority to carry on its business as it is currently being conducted, to
own, lease and operate its properties and, as applicable, to authorize the
offering of the Securities, including the Common Stock issuable upon
conversion thereof, to execute, deliver and perform this Agreement, and to
issue, sell and deliver the Securities, including the Common Stock issuable
upon conversion thereof, and to execute, deliver and perform the
Transaction Documents, as applicable, and each is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction where the operation, ownership or leasing of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified could not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the respective
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of
5
<PAGE>
each of the Company and the Subsidiaries taken as a whole (a
"Material Adverse Effect").
(e) All of the issued and outstanding shares of capital stock of,
or other ownership interests in, each Subsidiary have been duly and
validly authorized and issued, and all of the shares of capital stock
of, or other ownership interests in, each Subsidiary are owned, directly
or through Subsidiaries, by the Company and, upon completion of the
transactions contemplated by the Transaction Documents, substantially
all of the assets of the Nationwide Stations (other than as described in
the Prospectus) will be owned directly or through Subsidiaries, by the
Company. All such shares of capital stock are fully paid and
non-assessable, and are owned free and clear of any security interest,
mortgage, pledge, claim, lien or encumbrance (each, a "Lien"), except
for Liens arising under the Amended and Restated Credit Agreement, dated
as of September 16, 1997, by and among The Chase Manhattan Bank, as
Administrative Agent, Banque Paribas, as Documentation Agent, and Bank
of America, Illinois, as Syndication Agent (the "Credit Facility".)
There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or Liens related to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of, or other ownership interest in, any Subsidiary.
(f) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"; all the
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights; the Securities, including the Common Stock
issuable upon conversion thereof, have been duly authorized for issuance
and sale to the Underwriter pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; the capital stock of the Company, including the Common
Stock, conforms in all material respects to all statements relating thereto
in the Prospectus and the Registration Statement; and the issuance of the
Securities including the Common Stock issuable upon conversion thereof by
the Company will not be subject to preemptive or other similar rights.
6
<PAGE>
(g) None of the Company or any of the Subsidiaries is in violation of
their respective charters or bylaws or in default in the performance of any
bond, debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them is bound, or to which any of the property or assets of
the Company or any of the Subsidiaries is subject.
(h) The Transaction Documents have been duly authorized and validly
executed and delivered by the Registrants, as applicable, and constitute
valid and legally binding agreements of the Registrants, as applicable,
enforceable against the Registrants, as applicable, in accordance with
their terms (assuming, in the case of each of the Transaction Documents,
the due execution and delivery thereof by each party thereto).
(i) The Indenture has been duly authorized by the Company and, when
duly executed and delivered in accordance with its terms, will be a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity) and except to the extent that a waiver
of rights under any usury laws may be unenforceable.
(j) The execution and delivery of this Agreement, the Indenture and
the Securities by the Company, the issuance and sale of the Securities,
including the Common Stock issuable upon conversion thereof, the
performance of this Agreement and the Indenture and the consummation of the
transactions contemplated by this Agreement and the Indenture and the
execution and delivery of the Transaction Documents by each of the
Registrants, as applicable, and the consummation of the Pending
Transactions will not (1) conflict with or result in a breach or violation
of any of the respective charters or bylaws of the Company or any of the
Subsidiaries or any of the terms or provisions of, or (2) constitute a
default or cause an acceleration of any obligation under or result in the
imposition or creation of (or the obligation to create or impose) a Lien
with respect to, any bond, note, debenture or other evidence of
indebtedness or any indenture, mortgage, deed of trust or other agreement
or instrument to which the Company or any of the Subsidiaries is
7
<PAGE>
a party or by which it or any of them is bound, or to which any
properties of the Company or any of the Subsidiaries is or may be
subject, or (3) contravene any order of any court or governmental agency
or body having jurisdiction over the Company or any of the Subsidiaries
or any of their properties, or violate or conflict with any statute,
rule or regulation or administrative or court decree applicable to the
Company or any of the Subsidiaries or any of their respective properties.
(k) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries or Nationwide with respect
to the Nationwide Stations or any of their respective properties, which is
required to be disclosed in the Registration Statement or the Prospectus,
or which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect or which could reasonably be
expected to materially and adversely affect the consummation of this
Agreement or the transactions contemplated hereby or the consummation of
the Transaction Documents or the Pending Transactions, and to the best of
the Company's knowledge, no such proceedings are contemplated or
threatened. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement is not so described or filed.
(l) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities, including the Common
Stock issuable upon conversion thereof, suspends the effectiveness of the
Registration Statement, prevents or suspends the use of any preliminary
prospectus or suspends the sale of the Securities, including the Common
Stock issuable upon conversion thereof, in any jurisdiction referred to in
Section 4(g) hereof; no injunction, restraining order or order of any
nature by a Federal or state court of competent jurisdiction has been
issued with respect to the Company or any of the Subsidiaries which would
prevent or suspend the issuance or sale of the Securities, including the
Common Stock issuable upon conversion thereof, the effectiveness of the
Registration Statement, or the use of any preliminary prospectus in any
jurisdiction referred to in Section 4(g) hereof; no action, suit or
proceeding is pending against or, to the best of the Company's knowledge,
threatened against or affecting the Company or any of the Subsidiaries
before any court or arbitrator or any governmental body, agency or
official, domestic or foreign, which, if adversely determined, would
materially interfere with or adversely affect the issuance of the
Securities, including the Common Stock issuable upon conversion thereof, or
in any manner draw into question the
8
<PAGE>
validity of the Transaction Documents; and every request of the Commission
or any securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) has been complied with in all material respects.
(m) (i) None of the Company, any of the Subsidiaries and Nationwide
with respect to the Nationwide Stations is in violation of any Federal,
state or local laws and regulations relating to pollution or protection of
human health or the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata),
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of toxic or hazardous
substances, materials or wastes, or petroleum and petroleum products
("Materials of Environmental Concern"), or otherwise relating to the
protection of human health and safety, or the storage, disposal, transport
or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations, except
to the extent that any such violation could not have a Material Adverse
Effect or otherwise require disclosure in the Prospectus; and (ii) to the
best knowledge of the Company and any of the Subsidiaries, after due
inquiry, (A) none of the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations and any of the other parties to the
Transaction Documents (the "Pending Transaction Parties") with respect to
the properties and radio stations to be purchased or sold pursuant to the
Transaction Documents (the "Pending Properties") has received any
communication (written or oral), whether from a governmental authority or
otherwise, alleging any such violation or noncompliance, and there are no
circumstances, either past, present or that are reasonably foreseeable,
that may lead to such violation in the future, (B) there is no pending or
threatened claim, action, investigation or notice (written or oral) by any
person or entity alleging potential liability for investigatory, cleanup,
or governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned or operated by the Company, any of the
Subsidiaries, Nationwide with respect to the Nationwide Stations, and the
Pending Transaction Parties with respect to the Pending Properties, now or
in the past, or (y) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law (collectively, "Environmental
Claims") that could have a Material Adverse Effect or otherwise require
disclosure in the Prospectus, and (C) there are no past or present actions,
activities, circumstances, conditions,
9
<PAGE>
events or incidents, that could form the basis of any Environmental
Claim against the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations, and the Pending Transaction Parties
with respect to the Pending Properties, or against any person or entity
whose liability for any Environmental Claim the Company, any of the
Subsidiaries, Nationwide with respect to the Nationwide Stations, and
the Pending Transaction Parties with respect to the Pending Properties,
have retained or assumed either contractually or by operation of law.
In the ordinary course of its business, each of the Company and the
Subsidiaries and Nationwide with respect to the Nationwide Stations
conducts a periodic review of the effect of Environmental Laws on its
business, operations and properties in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties); on the basis
of such review, the Company and the Subsidiaries, have reasonably
concluded that such associated costs and liabilities could not have a
Material Adverse Effect.
(n) None of the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations, and to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
violated any Federal, state or local law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable wage or hour laws,
nor any provisions of the Employee Retirement Income Security Act of 1974
("ERISA") or the rules and regulations promulgated thereunder, nor has the
Company or any of the Subsidiaries or Nationwide with respect to the
Nationwide Stations or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, engaged in any
unfair labor practice, which in each case described in this sentence could
reasonably be expected to result, singly or in the aggregate, in a Material
Adverse Effect. There is (i) no significant unfair labor practice
complaint pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, before the National Labor Relations Board or any state or
local labor relations board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage pending against the Company or any of its Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending
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Transaction Parties with respect to the Pending Properties, or, to
the best knowledge of the Company, threatened against the Company or any
of the Subsidiaries, Nationwide with respect to the Nationwide Stations,
or the Pending Transaction Parties with respect to the Pending
Properties and (iii) to the best knowledge of the Company, no union
representation question existing with respect to the employees of the
Company or any of the Subsidiaries, or the Pending Transaction Parties
with respect to the Pending Properties, and, to the best knowledge of
the Company, no union organizing activities are taking place, except
(with respect to any matter specified in clause (i), (ii) or (iii)
above, singly or in the aggregate) such as could not have a Material
Adverse Effect.
(o) The Company, each of its Subsidiaries and Nationwide with respect
to the Nationwide Stations each have good and marketable title, free and
clear of all Liens, to all property and assets described in the
Registration Statement as being owned by it, except for (i) Liens pursuant
to the Credit Facility, (ii) Liens on general office equipment which are
not material to the Company's operations and (iii) Liens on the Nationwide
Stations which will be released upon consummation of the Nationwide
Acquisition. All leases to which the Company, the Subsidiaries or
Nationwide with respect to the Nationwide Stations are a party are valid
and binding and no default has occurred or is continuing thereunder and the
Company, each of its Subsidiaries and Nationwide with respect to the
Nationwide Stations enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such exceptions
as do not materially interfere with the use made by the Company or any such
Subsidiary or Nationwide with respect to the Nationwide Stations.
(p) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, E.F.M. Media Management, Inc., E.F.M. Publishing,
Inc., PAM Media, Inc., Archon Communications, Inc., Synergy Broadcast
Investment Enterprises, L.L.C., Worldstar, Inc., Multiverse Networks
L.L.C., Shanahan Broadcasting, Inc., (collectively, the "C&L Audited
Companies"), Nationwide, Premiere and Jacor Broadcasting of Youngstown,
Inc. filed, to be filed or incorporated by reference with the Commission as
part of the Registration
11
<PAGE>
Statement and the Prospectus are independent public accountants with
respect to the Company, the Subsidiaries, the C&L Audited Companies,
Premiere, Nationwide and Jacor Broadcasting of Youngstown, Inc. as
required by the Act. The consolidated historical and PRO FORMA
financial statements, together with related schedules and notes, set
forth in the Prospectus and the Registration Statement comply as to form
in all material respects with the requirements of the Act. Such
historical financial statements fairly present the consolidated
financial position of the Company, the Subsidiaries, the C&L Audited
Companies, Premiere, Nationwide and Jacor Broadcasting of Youngstown,
Inc. at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated, in
accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout such periods. Such PRO FORMA financial
statements have been prepared on a basis consistent with such historical
statements, except for the PRO FORMA adjustments specified therein, and
give effect to assumptions made on a reasonable basis and present fairly
the historical and proposed transactions contemplated by the Prospectus
and the Transaction Documents. The other financial and statistical
information and data included in the Prospectus and in the Registration
Statement, historical and PRO FORMA, are, in all material respects,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company, the C&L
Audited Companies, Premiere, Nationwide and Jacor Broadcasting of
Youngstown, Inc.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company, any of the Subsidiaries or Nationwide
with respect to the Nationwide Stations have incurred any liabilities or
obligations, direct or contingent, which are material to the Company and
the Subsidiaries taken as a whole, nor entered into any transaction not in
the ordinary course of business and there has not been, singly or in the
aggregate, any material adverse change, or any development which could
reasonably be expected to involve a material adverse change, in the
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company and the Subsidiaries taken
as a whole (a "Material Adverse Change").
(r) All tax returns required to be filed by the Company, any of the
Subsidiaries in any jurisdiction have been filed, other than those filings
being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid, other
than those being contested in good
12
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faith and for which adequate reserves have been provided or those
currently payable without penalty or interest.
(s) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in
connection with the transactions contemplated by the Transaction
Documents, except such as (i) may be required by the NASD, (ii) are
disclosed in the Prospectus or (iii) have been obtained and made under
the Act, the Exchange Act, the TIA or state securities or "Blue Sky"
laws or regulations. Neither the Company nor any of its affiliates is
presently doing business with the government of Cuba or with any person
or affiliate located in Cuba.
(t) (i) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
any of the Pending Transaction Parties with respect to the Pending
Properties, has all certificates, consents, exemptions, orders, permits,
licenses, authorizations, or other approvals (each, an "Authorization") of
and from, and has made all declarations and filings with, all Federal,
state, local and other governmental authorities (including the Federal
Communications Commission ("FCC")), all self-regulatory organizations and
all courts and other tribunals, necessary or required to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent that the
failure to obtain or file could not, singly or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (ii) all such Authorizations
are valid and in full force and effect, (iii) each of the Company, the
Subsidiaries and Nationwide with respect to the Nationwide Stations and, to
the knowledge of the Company, the Pending Transaction Parties with respect
to the Pending Properties, is in compliance in all material respects with
the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto and (iv) each commercial radio broadcast
station identified in the Prospectus as owned and operated by any of the
Company, the Subsidiaries or Nationwide with respect to the Nationwide
Stations, or, to the knowledge of the Company, the Pending Transaction
Parties with respect to the Pending Properties, as applicable, is operating
with the maximum facilities specified by the Authorization pertaining
thereto.
(u) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding
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company" or a "subsidiary company" of a holding company, or
an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(v) No holder of any security of the Company has or will have any
right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
(w) The Securities have been approved for quotation on the Nasdaq
SmallCap Market, subject to notice of issuance.
(x) Each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations and, to the knowledge of the Company, the
Pending Transaction Parties with respect to the Pending Properties,
possesses the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by them in connection with the businesses now
operated by them, and none of the Company, the Subsidiaries and Nationwide
with respect to the Nationwide Stations, and, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, has received any notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which, singly or in
the aggregate, could reasonably be expected to result in any Material
Adverse Change. The use of such Intellectual Property in connection with
the business and operations of each of the Company, the Subsidiaries and
Nationwide with respect to the Nationwide Stations, and, to the knowledge
of the Company, the Pending Transaction Parties with respect to the Pending
Properties does not, to the Company's knowledge, infringe on the rights of
any person except where any such infringement has not resulted in, or could
not reasonably be expected to result in any Material Adverse Change.
(y) Each certificate signed by any officer of any Registrant and
delivered to the Underwriter or counsel for the Underwriter shall be deemed
to be a representation and warranty by the applicable Registrant to the
Underwriter as to the matters covered thereby.
(z) Each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (1) transactions
are executed in
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accordance with management's general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability; (3) access to assets is permitted only in accordance
with management's general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(aa) The Company has not (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which could
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities or (ii) since the initial filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(bb) Each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations and, to the knowledge of the Company, the
Pending Transaction Parties with respect to the Pending Properties,
maintains insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and its Subsidiaries and their businesses. None of the Company,
any Subsidiary and Nationwide with respect to the Nationwide Stations, and,
to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, has received notice from any insurer or
agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance. All
such insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force on the Closing Date.
(cc) Neither the Company nor Nationwide with respect to the Nationwide
Stations has, directly or indirectly, paid or delivered any fee, commission
or other sum of money or item or property, however characterized, to any
finder, agent, government official or other party, in the United States or
any other country, which is in any manner related to the business or
operations of the Company or Nationwide with respect to the Nationwide
Stations, respectively, which the Company knows or has reason to believe to
have been illegal under any Federal, state or local laws of the United
States or any other country having jurisdiction; and neither the Company
nor Nationwide with
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<PAGE>
respect to the Nationwide Stations has participated, directly or
indirectly, in any boycotts or other similar practices in
contravention of law affecting any of its actual or potential customers.
(dd) The Company does not own any "margin securities" as that term is
defined in Regulations G and U of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), and, except as disclosed in
the Prospectus, none of the proceeds of the sale of the Securities will be
used, directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or
for any other purpose which might cause any of the Securities to be
considered a "purpose credit" within the meanings of Regulation G, T, U or
X of the Federal Reserve Board.
(ee) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to a local
marketing agreement or a joint sales agreement (a "Licensee") has been
issued by the FCC an FCC license (which is in full force and effect) for
the operation of the commercial radio broadcast station identified in the
Prospectus as programmed by the Company or any of its Subsidiaries, which
licenses expire on the dates set forth in the Prospectus.
(ff) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to an
exclusive sales agency agreement (a "Mexican Licensee"), has been issued by
the Mexican government all necessary Mexican licenses (which are in full
force and effect) for the operation of the commercial radio broadcast
station identified in the Prospectus as programmed by the Company or any of
its Subsidiaries. Each of the Company and its Subsidiaries have all
Authorizations necessary to deliver programming to the Mexican Licensees.
(gg) Each of the Company, its Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
filed with the FCC all material reports, documents, instruments,
information and applications required to be filed pursuant to the FCC's
rules, regulations and requests. No notice has been issued by the FCC
which could permit, or after notice or lapse of time or both could permit,
revocation or termination of any FCC license of any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations or,
16
<PAGE>
to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, or to the knowledge of the Company,
of any of the Licensees prior to the expiration dates thereof or which
could reasonably be expected to result in any other material impairment
of any of the Subsidiaries', or Nationwide with respect to the
Nationwide Stations or its subsidiaries, or, to the knowledge of the
Company, the Pending Transaction Parties or their subsidiaries with
respect to the Pending Properties, or, to the knowledge of the Company,
of any of the Licensees' rights thereunder and which could reasonably be
expected to, singly or in the aggregate, have a Material Adverse Effect.
(hh) Each of the Company's radio and television stations (the
"Stations") is now operating, and has operated, in compliance in all
material respects with the Communications Act of 1934, as amended (the
"Communications Act"), and the published rules and regulations of the FCC.
There is not issued, outstanding or pending any Notice of Violation, Notice
of Apparent Liability, Order to Show Cause, material complaint or
investigation by or before the FCC which could materially threaten or
materially adversely affect any of the Company's or any of its
Subsidiaries', Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries' with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' FCC licenses or which could reasonably be
expected to result in any material adverse effect upon any of the Company's
Subsidiaries, Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' operation of its respective stations and
which could reasonably be expected to, singly or in the aggregate, have a
Material Adverse Effect, nor does the Company have reason to believe that
the FCC licenses with respect to the Stations will not be renewed for a
full eight year term when such FCC licenses are due for renewal.
(ii) The execution, delivery and performance of the obligations by
the Company under this Agreement are not and will not be contrary to the
Communications Act, as amended, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
(jj) Other than for the divestiture of two radio stations in San
Diego, California, as described in the Prospectus, the execution, delivery
and perfor-
17
<PAGE>
mance of the obligations by JCC, Citicasters Co. and Nationwide (each, a
"Nationwide Transaction Party" and, collectively, the "Nationwide
Transaction Parties") and, to the knowledge of the Company, by the
Pending Transaction Parties with respect to the Pending Properties to
the extent each is a party to the Transaction Documents are not and will
not be contrary to the Communications Act, will not result in any
violation of the FCC's published rules and regulations, will not cause
any forfeiture or impairment of any FCC license of any of the Stations
by or before the FCC, and will not require any consent, approval or
authorization of the FCC. Other than applications relating to the
divestiture of two radio stations in San Diego, California, all
necessary applications, exhibits or other filings required by the FCC
for transfer of control of the Stations now controlled by the Pending
Transaction Parties with respect to the Pending Properties pursuant to
the applicable Transaction Documents have been filed with the FCC (the
"Transfer Applications"). To the best of the Company's knowledge, there
are no circumstances that would cause the FCC to reject the Transfer
Applications.
(kk) The Nationwide Transaction Parties and, to the knowledge of the
Company, the Pending Transaction Parties, have, to the extent each is or
will be a party thereto, all requisite corporate power and authority to
execute, deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Nationwide Transaction
Parties and, to the knowledge of the Company, the Pending Transaction
Parties, to the extent each is a party thereto, and each constitutes a
valid and legally binding agreement of the Nationwide Transaction Parties
and, to the knowledge of the Company, the Pending Transaction Parties,
enforceable against each Nationwide Transaction Party or Pending
Transaction Party, as applicable, in accordance with its terms; except as
set forth in the Prospectus, no consent, approval, authorization or order
of any court or governmental agency or body is required for the performance
of any of the Transaction Documents by each of the Nationwide Transaction
Parties or, to the knowledge of the Company, each Pending Transaction
Party, to the extent each is a party thereto, or the consummation by each
of the Nationwide Transaction Parties, or to the knowledge of the Company,
each of the Pending Transaction Parties, of any of the transactions
contemplated thereby, except such as may be required and have been
obtained, or upon effectiveness of the Registration Statement, will have
been obtained, under the Act, the Exchange Act, the TIA, or state
securities or "Blue Sky" laws or regulations or such as may be required by
the NASD in connection with the purchase and distribution of the Securities
by the Underwriter; and none of the
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<PAGE>
Nationwide Transaction Parties, is (i) in violation of its charter or
bylaws, (ii) in violation of any statute, judgment, decree, order, rule
or regulation applicable to any of them or any of their respective
properties or assets, which violation would have a Material Adverse
Effect, or (iii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any of the
Transaction Documents or any other contract, indenture, mortgage, deed
of trust, loan agreement, note, lease, license, franchise agreement,
permit, Authorizations, certificate or agreement or instrument to which
any of them is a party or to which any of them is subject, which default
would have a Material Adverse Effect.
(ll) The execution, delivery and performance by the Nationwide
Transaction Parties, to the extent each is a party thereto, of each of the
Transaction Documents, and the consummation by the respective Nationwide
Transaction Parties of the transactions contemplated thereby, will not
violate, conflict with or constitute or result in a breach of or a default
under (or an event which, with notice or lapse of time, or both, would
constitute a breach of or a default under) any of (i) the terms or
provisions of any of the Transaction Documents or any other indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, or agreement or instrument to which a Nationwide Transaction
Party, is a party or to which any of their respective properties or assets
are subject, which violation, conflict, breach or default would have a
Material Adverse Effect, (ii) the charter or bylaws of the Nationwide
Transaction Party, or (iii) any statute, judgment, decree, order, rule or
regulation of any court, governmental agency or other body or self
regulatory organization applicable to each Nationwide Transaction Party, or
any of their respective properties or assets, which violation, conflict,
breach or default would have a Material Adverse Effect.
(mm) The Nationwide Acquisition has been duly authorized by the
Nationwide Transaction Parties and the transactions contemplated by the
Transaction Documents have been approved, to the extent required, by all
appropriate corporate action; approval of the transactions contemplated by
the Transaction Documents by the shareholders of the Company is not
required.
(nn) The Company has delivered to the Underwriter a true and correct
copy of each of the Transaction Documents that have been executed and
delivered prior to the date of this Agreement and each other Transaction
Document in the form substantially as it will be executed and delivered,
together with all related agreements and all schedules and exhibits
thereto, and there have
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<PAGE>
been no amendments, alterations, modifications or waivers of any of the
provisions of any of the Transaction Documents since their date of
execution or from the form in which it has been delivered to the
Underwriter; there exists as of the date hereof (after giving effect to
the transactions contemplated by the Transaction Documents) no event or
condition which would constitute a default or an event of default (in
each case as defined in the Credit Facility, the LYONs due 2011, the
10-1/8% Notes, the 9-3/4% Notes, the 8-3/4% Notes or the Sub Notes,
respectively) under the Credit Facility, the LYONs due 2011, the 10-1/8%
Notes, the 9-3/4% Notes, the 8-3/4% Notes or the Sub Notes,
respectively, and no event or condition which would constitute a default
or an event of default (in each case as defined in each of the
Transaction Documents) under any of the Transaction Documents other than
the Credit Facility, the LYONs due 2011, the 10-1/8% Notes, the 9-3/4%
Notes, the 8-3/4% Notes or the Sub Notes, which would result in a
Material Adverse Effect or materially adversely effect the ability of
each of the Company or Nationwide to consummate the transactions
contemplated by the Transaction Documents. For purposes of this
Agreement, "LYONS DUE 2011" means the liquid yield option notes due 2011
issued by the Company pursuant to an Indenture, dated as of June 12,
1996, by and between the Company and the Bank of New York; "10-1/8%
NOTES" means the 10-1/8% Senior Subordinated Notes due 2006 issued by
JCAC, Inc. (predecessor to JCC), pursuant to an Indenture, dated as of
June 12, 1996, by and among JCAC, Inc., the Company and First Trust of
Illinois, National Association; "9-3/4% NOTES" means the 9-3/4% Senior
Subordinated Notes due 2006 issued by JCC pursuant to an Indenture,
dated as of December 17, 1996, by and among JCC, the Company, the
Subsidiary Guarantors named therein and the Bank of New York; and
"8-3/4% NOTES" means the 8-3/4% Senior Subordinated Notes due 2007
issued by JCC pursuant to an Indenture, dated as of June 11, 1997, by
and among JCC, the Company, the Subsidiary Guarantors named therein and
the Bank of New York.
(oo) The Company has filed with the Commission all filings that are
required to be filed as of the date hereof with respect to the financial
statements of each of the Nationwide Transaction Parties and each of the
Pending Transaction Parties in filings made under the Act and under the
Exchange Act, specifically as required by Rule 3-05 of Regulation S-X and
General Instructions and Item 7 of Form 8-K.
(pp) Each of the representations and warranties contained in each of
the Transaction Documents are true and correct on and as of the date
hereof, except as could not have a Material Adverse Effect.
20
<PAGE>
(qq) The Company meets the requirements for registering an offering
of securities with the Commission on registration statement Form S-3
pursuant to the standards for those Forms prior to October 21, 1992.
(rr) The Securities have received a rating of B3 from Moody's
Investors Service ("Moody's"); and the Sub Notes have received a rating of
B2 from Moody's.
(ss) Immediately after any sale of the Securities, the Sub Notes
and the Shares by the Company or JCC, as applicable, the aggregate
amount of securities that have been issued and sold by the Company or
JCC, as applicable, (including the Securities, the Sub Notes and the
Shares) will not exceed the amount of securities registered under the
Registration Statement.
SECTION 2. SALE AND DELIVERY TO UNDERWRITER; CLOSING. On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriter and
the Underwriter agrees to purchase from the Company, at the price per $1,000
principal amount at maturity set forth in the Pricing Agreement, the Initial
Securities.
(a) If the Company has elected not to rely upon Rule 430A
under the Act Regulations, the initial public offering price, the initial
conversion rate and the purchase price (per $1,000 principal amount at
maturity) to be paid by the Underwriter for the Securities have each been
determined and set forth in the Pricing Agreement, dated the date hereof,
and an amendment to the Registration Statement and the Prospectus will be
filed before the Registration Statement becomes effective.
(b) If the Company has elected to rely upon Rule 430A under
the Act Regulations, the purchase price (per $1,000 principal amount at
maturity) to be paid by the Underwriter for the Securities shall be an
amount equal to the initial public offering price, less an amount per
Security to be determined by agreement between the Underwriter and the
Company. The initial public offering price (per $1,000 principal amount at
maturity) of the Securities and the initial conversion rate applicable to
the Securities likewise shall be determined by agreement between the
Underwriter and the Company. The initial public offering price, the
initial conversion rate and the purchase price, when so determined, shall
be set forth in the Pricing Agreement. In the event that such prices have
not been agreed upon and the Pricing Agreement has
21
<PAGE>
not been executed and delivered by the parties thereto by the close of
business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability
of any party to any other party, unless otherwise agreed to by the
Company and the Underwriter.
(i) In addition, on the basis of the representations
and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to
the Underwriter, to purchase from it any or all of the Option
Securities (in multiples of $1,000 principal amount at maturity) at
the same price (per $1,000 principal amount at maturity) as is to be
paid by the Underwriter for the Initial Securities, plus accrued
amortization of original issue discount, if any, on the terms set
forth in the Pricing Agreement. The option hereby granted will expire
30 days after (i) the date the Registration Statement becomes
effective, if the Company has elected not to rely on Rule 430A under
the Act Regulations, or (ii) the Representation Date, if the Company
has elected to rely on Rule 430A under the Act Regulations, and may be
exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Underwriter to the Company setting forth the number of Option
Securities as to which the Underwriter is then exercising the option
and the time and date of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Underwriter, but shall not be later than
seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined, unless
otherwise agreed by the Underwriter and the Company.
(ii) Delivery of the Initial Securities shall be made
at the offices of the Underwriter in New York City, and payment of the
purchase price for the Initial Securities shall be made at the offices
of counsel for the Company in New York City, or, in each case, at such
other place as shall be agreed upon by the Underwriter and the
Company, at 10:00 A.M., New York City time, on February 9, 1998 (such
time and date of payment and delivery being herein called the "Closing
Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriter, payment of the purchase
price for, and delivery of certificates for, such Option Securities
shall be made at the offices set forth above, or at such other place
as shall be agreed upon by
22
<PAGE>
the Underwriter and the Company, on the Date of Delivery as
specified in the notice from the Underwriter to the Company.
Payment shall be made by wire transfer payable in same day funds,
to the order of the Company against delivery to the Underwriter of
certificates for the Securities to be purchased by it. Certificates
for the Securities and the Option Securities, if any, shall be in
such denominations and registered in such names as the Underwriter
may request in writing at least two business days before Closing
Time or the Date of Delivery, as the case may be. The certificates
for the Initial Securities and the Option Securities, if any, will
be made available for examination and packaging by the Underwriter
not later than 10:00 A.M., New York City time, on the last business
day prior to the Closing Time or the Date of Delivery, as the case
may be, in New York City.
SECTION 3. COVENANTS OF THE COMPANY. The Registrants, as applicable,
covenants with the Underwriter as follows:
(a) The Registrants will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under the
Act, a post-effective amendment to the Registration Statement, in each
case as soon as practicable after the execution and delivery of this
Agreement, and will use their best efforts to cause the Registration
Statement or such post-effective amendment to become effective at the
earliest possible time. The Registrants will comply fully and in a
timely manner with the applicable provisions of Rule 424 and Rule 430A
and, if applicable, Rule 462, under the Act.
(b) The Company will advise you promptly and, if requested by any of
you, confirm such advice in writing, (i) when the Registration Statement
has become effective, if and when the Prospectus is sent for filing
pursuant to Rule 424 under the Act and when any post-effective amendment to
the Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission or any state securities commission or
regulatory authority that relate to the Registration Statement or requests
by the Commission or any state securities commission or regulatory
authority for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or of the suspension of qualification of the
Securities, including the Common Stock issuable upon conversion thereof,
for offering or sale in any jurisdiction, or the initiation of
23
<PAGE>
any proceeding for such purpose by the Commission or any state
securities commission or any other regulatory authority, and (iv) of the
happening of any event during such period as in your reasonable judgment
you are required to deliver a prospectus in connection with sales of the
Securities by you which makes any statement of a material fact made in
the Registration Statement untrue or which requires the making of any
additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein
not misleading or that makes any statement of a material fact made in
the Prospectus (as amended or supplemented from time to time) untrue or
which requires the making of any additions to or changes in the
Prospectus (as amended or supplemented from time to time) in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. The Company shall use its best efforts
to prevent the issuance of any stop order or order suspending the
qualification or exemption of the Securities under any state securities
or Blue Sky laws, and, if at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption of the
Securities under any state securities or Blue Sky laws, the Company
shall use every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
(c) The Company will furnish to you without charge two (2) signed
copies (plus one (1) additional signed copy to your legal counsel) of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may reasonably
request.
(d) The Registrants will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus, of which
you shall not previously have been advised and provided a copy within two
business days prior to the filing thereof (or such reasonable amount of
time as is necessitated by the exigency of such amendment or supplement) or
to which you shall reasonably object; and the Registrants will prepare and
file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution of
the Securities by you, and will
24
<PAGE>
use their best efforts to cause any amendment to the Registration
Statement to become effective as promptly as possible.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period in your reasonable judgment as
a prospectus is required to be delivered in connection with sales of the
Securities by you, the Company will furnish to each Underwriter and dealer
without charge as many copies of the Prospectus (and of any amendment or
supplement to the Prospectus) as the Underwriter and dealers may reasonably
request. The Registrants consent to the use of the Prospectus and any
amendment or supplement thereto by any Underwriter or any dealer, both in
connection with the offering or sale of the Securities and for such period
of time thereafter as the Prospectus is required by the Act or the Exchange
Act to be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the Securities
by you any event shall occur as a result of which, in the opinion of
counsel for the Underwriter, it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances existing as of the date the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriter, it is necessary to amend or supplement the Prospectus to
comply with any law, the Registrants will promptly prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented, will
not, in the light of the circumstances existing as of the date the
Prospectus is so delivered, be misleading, and will comply with applicable
law, and will furnish to each Underwriter and dealer without charge such
number of copies thereof as the Underwriter and dealers may reasonably
request.
(g) Prior to any public offering of the Securities, the Registrants
will cooperate with you and your counsel in connection with the
registration or qualification of the Securities, including the Common Stock
issuable upon conversion thereof, for offer and sale by you under the state
securities or Blue Sky laws of such jurisdictions as you may request
(provided, that the Registrants shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which they are not so qualified
or to take any action that would subject them to general consent to service
of process in any jurisdiction in which they are not
25
<PAGE>
now so subject). The Registrants will continue such qualification in
effect so long as required by law for distribution of the Securities.
(h) The Company will make generally available to its security holders
as soon as reasonably practicable a consolidated earning statement covering
a period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder, and to
advise you in writing when such statement has been so made available.
(i) The Registrants will timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the
Exchange Act.
(j) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed, and (ii) from time to time such other information concerning the
Company as you may request.
(k) The Company will use the proceeds from the sale of the Securities
in the manner described in the Prospectus under the caption "Use of
Proceeds."
(l) The Company will cause the Securities to be quoted on the Nasdaq
Stock Market's SmallCap Market (the "Nasdaq SmallCap Market") and will use
its reasonable best efforts to maintain such quotation while any of the
Securities are outstanding.
(m) The Registrants will use their best efforts to do and perform all
things required to be done and performed under this Agreement by them prior
to or after the Closing Date and to satisfy all conditions precedent on
their part to the delivery of the Securities.
(n) The Company will timely complete all required filings and
otherwise comply fully in a timely manner with all provisions of the
Exchange Act, and will file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14(a) or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of the Prospectus is required in
26
<PAGE>
connection with the offer or sale of the Securities, including the Common
Stock issuable upon conversion thereof.
(o) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, except as described under
"Transactions" in the Prospectus with respect to the Pending Transactions
and under "Prospectus Supplement Summary -- Recent Developments" in the
Prospectus with respect to certain other potential transactions, there will
be no transactions entered into by the Company or any of its subsidiaries
(each a "Subsidiary" and, collectively, the "Subsidiaries"), which are
material with respect to the Company or any of the Subsidiaries,
respectively, taken individually or as a whole, as determined in accordance
with the provisions of Rule 3-05 of Regulation S-X or other standards for
materiality as may be agreed upon by the Company and the Underwriter and
there will be no dividend or distribution of any kind declared, paid or
made by the Company on any class of capital stock or other equity
interests.
SECTION 4. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated, the
Registrants will pay and be responsible for all costs, expenses, fees and taxes
in connection with or incident to (i) the printing, processing, filing,
distribution and delivery under the Act or the Exchange Act of the Registration
Statement, each preliminary prospectus, the Prospectus and all amendments or
supplements thereto, (ii) the printing, processing, execution, distribution and
delivery of this Agreement, any memoranda describing state securities or Blue
Sky laws and all other agreements, memoranda, correspondence and other documents
printed, distributed and delivered in connection with the offering of the
Securities, (iii) the registration with the Commission and the issuance and
delivery of the Securities, (iv) the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of the
jurisdictions referred to in paragraph (g) above (including, in each case, the
fees and disbursements of counsel relating to such registration or qualification
and memoranda relating thereto and any filing fees in connection therewith), (v)
furnishing such copies of the Registration Statement, Prospectus and preliminary
prospectus, and all amendments and supplements to any of them, as may be
reasonably requested by you, (vi) filing, registration and clearance with the
NASD in connection with the offering of the Securities (including any filing
fees in connection therewith and the fees and disbursements of counsel relating
thereto), (vii) the listing of the Securities on the Nasdaq SmallCap Market,
(viii) the rating of the Securities and the Sub Notes by investment rating
agencies, (ix) any "qualified independent underwriter" as required by Schedule E
of the Bylaws of the NASD (including fees and disbursements of counsel for such
qualified independent under-
27
<PAGE>
writer), (x) the printing, processing, execution, distribution and delivery
of the Transaction Documents and all other agreements, memoranda,
correspondence and other documents, printed, distributed and delivered in
connection with the Transaction Documents and (xi) the performance by the
Registrants of their other obligations under this Agreement, the cost of its
personnel and other internal costs, the cost of printing and engraving the
certificates representing the Securities, and all expenses and taxes incident
to the sale and delivery of the Securities to you.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Registrants herein contained, to the performance by the
Registrants of their obligations hereunder, and to the following further
conditions:
(a) All the representations and warranties of the Registrants
contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
The Company shall have performed or complied with all of its obligations
and agreements herein contained and required to be performed or complied
with by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule 430A
promulgated under the Act, such post-effective amendment shall have become
effective) not later than 10:00 A.M. (and in the case of a Registration
Statement filed under Rule 462(b) of the Act, not later than 10:00 P.M.),
New York City time, on the date of this Agreement or at such later date and
time as you may approve in writing, (ii) at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission and every request
for additional information on the part of the Commission shall have been
complied with in all material respects, and (iii) no stop order suspending
the sale of the Securities in any jurisdiction referred to in Section 4(g)
shall have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Securities, including the Common Stock issuable upon conversion thereof,
the Shares, or
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<PAGE>
the Sub Notes; and no injunction, restraining order or order of any
nature by a Federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent the issuance of
the Securities, including the Common Stock issuable upon conversion
thereof, the Shares or the Sub Notes, or the consummation of the
transactions contemplated by the Transaction Documents.
(d) (i) Since the date hereof or since the dates as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Change, (ii) since the date
of the latest balance sheet included, or incorporated by reference, in the
Registration Statement and the Prospectus, there shall not have been any
material change in the capital stock or long-term debt, or material
increase in short-term debt, of the Company or any of the Subsidiaries
taken as a whole and (iii) the Company and the Subsidiaries taken as a
whole, shall have no liability or obligation, direct or contingent, that is
material to the Company and the Subsidiaries taken as a whole,
respectively, and is required to be disclosed on a balance sheet in
accordance with GAAP and is not disclosed on the latest applicable balance
sheet included in the Registration Statement and the Prospectus.
(e) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Vice President and a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 5.
(f) On the Closing Date, you shall have received:
(1) an opinion (satisfactory to you and your counsel), dated
the Closing Date, of Graydon, Head & Ritchey, counsel for
the Company (which opinion shall, in regards to any
matters covered by the law of the State of Florida, rely
on the opinion of Florida counsel reasonably acceptable to
the Underwriter), to the effect that:
(i) (A) the Company and each of Jacor Cable, Inc., a
Kentucky corporation; Broadcast Finance, Inc., an Ohio corporation;
Citicasters Co., an Ohio corporation; Jacor Broadcasting Corporation,
an Ohio corporation; Jacor Broadcasting of Youngstown, an Ohio
corporation; WHOK, Inc., an Ohio corporation; Jacor Broadcasting of
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<PAGE>
Florida, Inc., a Florida corporation; Jacor Broadcasting of Sarasota,
Inc., a Florida corporation; Jacor Broadcasting of Tampa Bay, Inc., a
Florida corporation; JCC, a Florida corporation; GACC-N26LB, Inc., a
Delaware corporation; Jacor Broadcasting of Charleston, Inc., a
Delaware corporation; Jacor Broadcasting of Kansas City, inc., a
Delaware corporation; Jacor Broadcasting of Las Vegas, Inc., a
Delaware corporation; Jacor Broadcasting of Las Vegas II, Inc., a
Delaware corporation; Jacor Broadcasting of Louisville, Inc., a
Delaware corporation; Jacor Broadcasting of Louisville II, Inc., a
Delaware corporation; Jacor Broadcasting of Salt Lake City, Inc., a
Delaware corporation; Jacor Broadcasting of Salt Lake City II, Inc., a
Delaware corporation; Jacor Broadcasting of San Diego, Inc., a
Delaware corporation; Jacor Broadcasting of St. Louis, Inc., a
Delaware corporation; Jacor Licensee of Charleston, Inc., a Delaware
corporation; Jacor Licensee of Kansas City, Inc., a Delaware
corporation; Jacor Licensee of Las Vegas, Inc., a Delaware
corporation; Jacor Licensee of Las Vegas II, Inc., a Delaware
corporation; Jacor Licensee of Louisville, Inc, a Delaware
corporation; Jacor Licensee of Louisville II, Inc., a Delaware
corporation; Jacor Licensee of Salt Lake City, Inc., a Delaware
corporation; Jacor Licensee of Salt Lake City II, Inc., a Delaware
corporation; Jacor/Premiere Holding, Inc., a Delaware corporation;
Multiverse Acquisition Corp., a Delaware corporation; Noble
Broadcasting Group, Inc., a Delaware corporation; Noble Broadcasting
Holdings, Inc., a Delaware corporation; NSN Network Services, Ltd., a
Delaware corporation; Premiere Radio Networks, Inc., a Delaware
corporation, and Radio-Active Media, Inc., a Delaware corporation, is
a duly organized and validly existing corporation in good standing
under the laws of its jurisdiction of incorporation, has the requisite
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Prospectus, and is duly qualified as a foreign corporation and
in good standing in each jurisdiction where the ownership, leasing or
operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not
be reasonably expected to have, singly or in the aggregate, a Material
Adverse Effect; and (B) the Company has the requisite corporate power
and authority to execute, deliver and perform this Agreement;
(ii) the Transaction Documents have been duly
authorized, executed and delivered by the Registrants, as applicable;
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(iii) the authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" and conforms in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus;
(iv) all of the issued and outstanding shares of
capital stock of, or other ownership interests in, each Subsidiary
listed in subparagraph (i) above have been duly and validly authorized
and issued and are fully paid and non-assessable, and the shares of
capital stock of, or other ownership interests in, each Subsidiary are
owned, directly or through Subsidiaries, by the Company, and are owned
free and clear of any Lien, except for Liens pursuant to the Credit
Facility;
(v) to the knowledge of such counsel (after due
inquiry) there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or Liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in,
any Subsidiary except as disclosed in the Prospectus;
(vi) neither the Company nor any of the Subsidiaries
is (A) an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act of
1940, as amended, or (B) a "holding company" or a "subsidiary company"
of a holding company, or an "affiliate" thereof within the meaning of
the Public Utility Holding Company Act of 1935, as amended;
(vii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities, the Sub Notes or the Shares will violate
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System;
(viii) the shares of the Common Stock initially
issuable upon conversion of the Securities have been duly authorized
and reserved for issuance upon conversion of the Securities, are free
of preemptive rights and, when issued upon conversion of the
Securities in accordance with the terms of the Indenture, will be
validly issued, fully paid and non-assessable;
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(ix) when authenticated in accordance with the terms
of the respective indenture and delivered to and paid for in
accordance with the terms of the respective underwriting agreement,
the Securities and the Sub Notes will constitute valid and legally
binding obligations of the Company and the Registrants, respectively,
enforceable against the Company and the Registrants, respectively, in
accordance with their respective terms and entitled to the benefits of
the respective indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity) and except to the extent
that a waiver of rights under any usury laws may be unenforceable;
(x) the Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding agreement of the Company, enforceable against the
Company, in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except
to the extent that a waiver of rights under any usury laws may be
unenforceable;
(xi) the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(xii) to the best knowledge of such counsel, there is
no current, pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary or to which any of their
respective properties is subject of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus;
(xiii) the descriptions in the Registration Statement
and the Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all
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material respects and fairly present the information required to be
shown; and such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement
or Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no
opinion as to the financial statements, notes or schedules or other
financial data included therein;
(xiv) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements and term sheets thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b);
and to the knowledge of such counsel (after due inquiry) no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings therefor have been
instituted or are pending or contemplated under the Act; and the
Indenture has been duly qualified under the TIA;
(xv) no authorization, approval, consent or order of,
or filing with, any court or governmental body or agency is required
for the consummation by the Company of the transactions contemplated
by the Agreement, except such as have been obtained and made under the
Act, the Exchange Act, the TIA, state securities or "Blue Sky" laws or
regulations or such as may be required by the NASD; no authorization,
approval, consent or order of, or filing with, any court or
governmental body or agency is required for the consummation by the
Registrants, as applicable, or Nationwide with respect to the
Nationwide Stations, of the transactions contemplated by the
applicable Transaction Documents, except as disclosed in the
Prospectus; the execution and delivery of this Agreement and the
Indenture, the issuance and sale of the Securities, the performance of
this Agreement and the consummation of the transactions contemplated
by this Agreement will not result in a breach or violation of any of
(A) any of the respective charters or bylaws of the Company or any of
the Subsidiaries or (B) to the knowledge of such counsel (after due
inquiry), the terms or provisions of any agreement or instrument which
is filed as an exhibit to the Registration Statement and to which the
Company or any of the Subsidiaries is a party or by which any of them
is bound, or to which any of the proper-
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ties of the Company or any of the Subsidiaries is subject, or (C)
to the knowledge of such counsel (after due inquiry) constitute a
default under, any statute, rule or regulation to which the Company
or any Subsidiary is bound or to which any of the properties of the
Company or any Subsidiary is subject or (D) any order of any court
or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries or any of their properties which
conflict, breach or default in each of the cases described in
clauses (B), (C) and (D) could reasonably be expected to have a
Material Adverse Effect;
(xvi) at the time it became effective and on the
Closing Date, the Registration Statement complied as to form in all
material respects with the Act;
(xvii) to the knowledge of such counsel, neither the
Company nor the Subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to the
Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to result in a Material Adverse Change. The
use of such Intellectual Property in connection with the business and
operations of the Company and the Subsidiaries does not, to the
knowledge of such counsel, infringe on the rights of any person;
(xviii) to the best knowledge of such counsel, (A)
there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments to which the Company,
any of the Subsidiaries or Nationwide with respect to the Nationwide
Stations are a party or by which any of them may be bound that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described therein or filed as exhibits thereto and
(B) no default exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described or filed in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement,
or any agreement identified on a schedule attached to the opinion,
except for defaults which could not reasonably be expected to have a
Material Adverse Effect; and (C) the statements in the Prospectus
under the captions "Description of Capital Stock"
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insofar as they relate to statements of law or legal conclusions
are accurate in all material respects;
(xix) the Company, the Subsidiaries and to the
knowledge of such counsel, Nationwide, to the extent each is a party
thereto, have full corporate power and authority to execute, deliver
and perform its respective obligations under the applicable
Transaction Documents;
(xx) the Transaction Documents, assuming the
authorization, execution and delivery thereof by the parties other
than the Registrants, as applicable, and Nationwide, constitute valid
and legally binding agreements of the respective parties thereto
enforceable against each of the parties, to the extent each is a party
thereto, in accordance with their respective terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights generally and to principles
of equity (regardless of whether enforcement is sought in a proceeding
at law or equity) and except to the extent that a waiver of rights
under usury laws may be unenforceable;
(xxi) the approval of the transactions contemplated by
the Transaction Documents by the stockholders of the Company is not
required; and
(xxii) although the discussion in the Prospectus under
the heading "Certain Federal Income Tax Considerations" does not
purport to discuss all possible United States Federal income tax
consequences of the purchase, ownership, and disposition of the LYONs,
such discussion constitutes, in all material respects, an accurate
summary of the material United States Federal income tax consequences
of the purchase, ownership and disposition of the LYONs under existing
law.
Such counsel shall additionally state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company, your representatives and your counsel in connection with the
preparation of the Registration Statement and Prospectus and has considered
the matters required to be stated therein and the statements contained
therein,
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although such counsel has not independently verified the accuracy,
completeness or fairness of such statements (except as indicated above);
and such counsel advises you that, on the basis of the foregoing, no
facts came to such counsel's attention that caused such counsel to
believe that the Registration Statement (as amended or supplemented, if
applicable), at the time such Registration Statement or any
post-effective amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (other than information omitted therefrom in reliance on Rule
430A under the Act), or the Prospectus (as amended or supplemented), as
of its date and the Closing Date, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. Without limiting the foregoing, such
counsel may further state that the firm assumes no responsibility for,
and the firm has not independently verified, the accuracy, completeness
or fairness of the financial statements, notes and schedules and other
financial data included in the Registration Statement.
(2) An opinion (satisfactory to you and your counsel), dated
the Closing Date of Hogan & Hartson, L.L.P., counsel for the Company with
respect to FCC and related matters to the effect that:
(ii) those statements in the Prospectus (including
the statements incorporated by reference in the
Prospectus, under the caption "Business -- Federal
Regulation of Radio Broadcasting" in the Company's Form
10-K filed for the year ended December 31, 1996) that
describe provisions of the Communications Act of 1934,
as amended (the "Communications Act"), and the FCC's
published rules or regulations (for purposes of this
opinion only, the "Rules") are accurate descriptions in
all material respects.
(iii) Schedule 1 to this opinion sets forth a
complete list of the main station authorizations issued
by the FCC to the Company and its Subsidiaries (for
purposes of this opinion only, the "Licenses"). To such
counsel's knowledge, the Licenses are the only licenses,
permits or authorizations required under the
Communications Act for the broadcast of signals on the
main station frequency of each of the radio stations
listed on Schedule 2 (for purposes of this opinion only,
the "Jacor Stations"). Except for the pending
applications noted on
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Schedule 1 hereto, the Licenses are in full force and
effect (and the time within which any administrative or
judicial appeal, reconsideration, rehearing or other
review might be sought has lapsed with respect to the
grant of the authorizations for the currently effective
terms, and no such appeal, reconsideration, rehearing,
or other review has been taken or instituted), and are
held by the relevant Subsidiary, and the expiration date
of each License is set forth in Schedule 1 hereto.
Except as indicated on Schedule 3 to this opinion, the
Licenses are not subject to any conditions imposed by
the FCC other than those that appear on the Licenses or
are customarily imposed by the FCC on radio stations of
the same class and type.
(iv) Except as listed in Schedule 4 hereto, there
is no proceeding or other administrative action pending
or, to such counsel's knowledge, threatened, before the
FCC against the Company or any Subsidiary, which, if
adversely determined, would materially and adversely
affect the business or financial condition of the
Company and its Subsidiaries, taken as a whole. To such
counsel's knowledge, except as listed on Schedule 5 to
this opinion, the Company and the Subsidiaries have
filed with the FCC during the current license term of
each License all material reports and forms required to
be filed by the Company and the Subsidiaries with the
FCC with respect to the Jacor Stations.
(v) The execution and delivery by the Company
and any Subsidiary of the Transaction Documents, and the
performance of the obligations as of the date hereof by
the Company under the Underwriting Agreement and the
Indenture, (i) do not violate the Communications Act,
(ii) do not violate any of the Rules, (iii) do not
violate the terms of any of the Licenses, (iv) do not
cause any forfeiture or impairment of any License and
(v) do not require any consent, approval or
authorization of the FCC that has not been obtained.
Except as indicated on Schedule 6, all necessary
applications required by the FCC as of the date hereof
for the transfer of control or assignment of the
licenses of the stations described in the Prospectus
under "Pending Radio Station Transactions" have been
filed with the FCC.
(3) An opinion (satisfactory to you and your counsel), dated
the Closing Date of Paul, Hastings, Janofsky & Walker LLP, counsel for the
Company, to the effect that:
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(i) when authenticated in accordance with the terms of
the Indenture and delivered to and paid for in accordance with the
terms of this Agreement, the Securities will constitute valid and
legally binding obligations of the Company, enforceable against the
Company, in accordance with its terms and entitled to the benefits of
the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that a waiver
of rights under any usury laws may be unenforceable; and
(ii) the Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding agreement of the Company, enforceable against the
Company, in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except
to the extent that a waiver of rights. under any usury laws may be
unenforceable.
(g) You shall have received an opinion, dated the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"), counsel for the
Underwriter, in form and substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former), in form and
substance satisfactory to you, from Coopers & Lybrand L.L.P., Ernst & Young
LLP and KPMG Peat Marwick, independent public accountants, containing the
information and statements of the type ordinarily included in accountants'
"comfort letters" to Underwriters, with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus for each of (i) the Company and the C&L Audited
Companies, (ii) Premiere and (iii) Nationwide, respectively.
(i) Skadden Arps shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in
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this Section 5 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
(k) At the Closing Date, the Securities and the Shares shall have
been approved for quotation on the Nasdaq Stock Market's SmallCap Market
and Nasdaq National Market, respectively, subject to notice of issuance.
(l) There shall have been no amendments, alterations, modifications,
or waivers of any provisions of the Transaction Documents since the date of
the execution and delivery thereof by the parties thereto other than those
which under the Act are not required to be disclosed in the Prospectus or
any supplement thereto and which have been disclosed to the Underwriter
prior to the date hereof.
(m) Each of the Registrants, as applicable, and Nationwide shall, to
the extent each is a party thereto, have complied in all respects with all
agreements and covenants in the Transaction Documents and performed all
conditions specified therein that the terms thereof require to be complied
with or performed at or prior to the date hereof.
(n) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have completed the Sub Notes
Offering and the Shares Offering.
(o) Except as is disclosed to the Underwriter in writing, the
representations and warranties of the Registrants, as applicable, and
Nationwide set forth in the Transaction Documents shall be true, accurate
and complete in all respects.
(p) Prior to the Closing Date, the Company shall have obtained the
determination of the Administrative Agent (as that term is defined in the
Credit Facility) pursuant to Section 6.11(g) of the Credit Facility that
the Securities are substantially similar to the 10-1/8% Notes, the 9-3/4%
Notes and the 8-3/4% Notes.
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(q) The Registrants shall not have failed on or prior to the Closing
Date to perform or comply with any of the agreements contained herein.
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless (i) the Underwriter and (ii) each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act) the Underwriter (any of the persons referred to in this clause (ii)
being hereinafter referred to as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any of the Underwriter or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as
an "Indemnified Person") to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, judgments, actions and
expenses (including without limitation and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Person) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement or the
Prospectus (including any amendment or supplement thereto) or any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, PROVIDED,
HOWEVER, that (i) except insofar as such losses, claims, damages,
liabilities, judgments, actions or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made
in reliance upon and in conformity with information relating to the
Underwriter furnished in writing to the Company by the Underwriter
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, (ii) the foregoing indemnity agreement with respect
to any untrue statement contained in or omission from a preliminary
prospectus shall not inure to the benefit of the Underwriter from whom the
person asserting any such losses, liabilities, claims, damages or expenses
purchased Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented, if the Company shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of the Underwriter to such person, if such is required by
law, at or prior to the written confirmation of the sale of such
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Securities to such person and the untrue statement contained in or
omission from such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented). The Company
shall notify you promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this Agreement
which involves the Company or an Indemnified Person.
(b) In case any action or proceeding (including any
governmental investigation) shall be brought or asserted against any of the
Indemnified Persons with respect to which indemnity may be sought against
the Company, the Underwriter shall promptly notify the Company in writing
(provided, that the failure to give such notice shall not relieve the
Company of its obligations pursuant to this Agreement). Such Indemnified
Person shall have the right to employ its own counsel in any such action
and the fees and expenses of such counsel shall be paid, as incurred, by
the Company (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder). The
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any
time for such Indemnified Persons, which firm shall be designated by the
Underwriter. The Company shall be liable for any settlement of any such
action or proceeding effected with the Company's prior written consent,
which consent will not be unreasonably withheld, and the Company agrees to
indemnify and hold harmless any Indemnified Person from and against any
loss, claim, damage, liability or expense by reason of any settlement of
any action effected with the written consent of the Company.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested the Company to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the second sentence of
this paragraph, the Company agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 10 business days after receipt by
the Company of the aforesaid request, and (ii) the Company shall not have
reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement. The Company shall not, without the prior
written consent of each Indemnified Person, settle or compromise or consent
to the entry of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which
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indemnification or contribution may be sought hereunder (whether or not any
Indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each
Indemnified Person from all liability arising out of such action, claim,
litigation or proceeding.
(c) The Underwriter agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration
Statement, any person controlling (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) the Company, and the officers,
directors, partners, employees, representatives and agents of each such
person, to the same extent as the foregoing indemnity from the Company to
each of the Indemnified Persons, but only with respect to claims and
actions based on information relating to the Underwriter furnished in
writing by the Underwriter expressly for use in the Prospectus.
(d) If the indemnification provided for in this Section 6
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, judgments,
actions and expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the
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 parties and the indemnified
party, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and of the
Underwriter, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by the Underwriter, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the
Underwriter shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the Company or the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such
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statement or omission. The indemnity and contribution obligations of
the Company set forth herein shall be in addition to any liability or
obligation the Company may otherwise have to any Indemnified Person.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) 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 the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, judgments, actions or expenses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, the Underwriter (and its related Indemnified Persons) shall not be
required to contribute any amount in excess of the amount by which the total
underwriting discount applicable to the Securities underwritten by the
Underwriter and distributed to the public exceeds the amount of any damages
which the Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the Indemnified Parties
although applicable in accordance with its terms, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial public offering price appearing thereon, and the
Company is responsible for the balance; PROVIDED, HOWEVER, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to
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contribution as the Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the Act shall have the same rights to contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers
of the Company submitted pursuant to Section 5 of this Agreement, shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or controlling person,
or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriter and any termination of this Agreement.
SECTION 9. TERMINATION OF AGREEMENT. This Agreement shall become
effective upon the later of (i) the execution and delivery of this Agreement
by the parties hereto, (ii) the effectiveness of the Registration Statement,
and (iii) if a post-effective amendment is required to be filed pursuant to
Rule 430A under the Act, the effectiveness of such post-effective amendment.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change occurs
which, in the judgment of the Underwriter, make it impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
(ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere, or any other substantial
national or international calamity or emergency if the effect of such outbreak,
escalation, calamity, crisis, change or emergency would, in the judgment of the
Underwriter, make it impracticable or inadvisable to market the Securities on
the terms and in the manner contemplated by the Prospectus, (iii) any suspension
or limitation of trading generally in securities on the New York Stock Exchange,
the American Stock Exchange, the Nasdaq Stock Market or in the over-the-counter
markets or any setting of minimum prices for trading on such exchanges or
markets, (iv) any declaration of a general banking moratorium by Federal, New
York or Kentucky authorities, (v) the taking of any action by any Federal, state
or local government or agency in respect of its monetary or fiscal affairs that
in your judgment has a material adverse effect on the financial markets in the
United States, and would, in your judgment, make it impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
(vi) the enactment, publication, decree, or other promulgation of any
44
<PAGE>
Federal or state statute, regulation, rule or order of any court or other
governmental authority which, in your judgment, materially and adversely
affects or will materially and adversely affect the business or operations of
the Company or any Subsidiary, or (vii) any securities of the Company or any
of the Subsidiaries shall have been downgraded or placed on any "watch list"
for possible downgrading by any nationally recognized statistical rating
organization, PROVIDED, that in the case of such "watch list" placement,
termination shall be permitted only if such placement would, in the judgment
of the Underwriter, make it impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities or
materially impair the investment quality of the Securities.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Company, its officers and directors and of
the Underwriter set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriter or by or on behalf of
the Company, the officers or directors of the Company or any controlling person
of the Company, (ii) acceptance of the Securities and payment for them hereunder
and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriter pursuant to
clauses (i) or (vii) of the second paragraph of this Section 9 or because of the
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
you for all out-of-pocket expenses (including the fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement,
the Company shall be liable for all expenses which it has agreed to pay pursuant
to Section 4 hereof.
SECTION 10. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the Underwriter at World Finance Center, North
Tower, 250 Vesey Street, New York, New York 10281, Attention: Syndication
Department, with a copy to Skadden, Arps, Slate, Meagher & Flom, 300 South Grand
Avenue, Suite 3400, Los Angeles, California 90071, Attention: Gregg A. Noel,
Esq.; notices to the Registrants or the Company shall be directed to the Company
at 50 East RiverCenter Boulevard, 12th Floor, Covington, Kentucky 41011,
Attention: Randy Michaels, Chief Executive Officer, with a copy to Graydon,
Head & Ritchey, 1900 Fifth Third Center, 511 Walnut Street, P.O. Box 6464,
Cincinnati, Ohio 45201, Attention: Richard G. Schmalzl, Esq.
45
<PAGE>
SECTION 11. PARTIES. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriter and the Company and
their respective successors, heirs and legal representatives. Nothing expressed
or mentioned in this Agreement or in the Pricing Agreement is intended or shall
be construed to give any person, firm or corporation, other than the Underwriter
and the Company and their respective successors, heirs and legal
representatives, and the controlling persons and officers and directors referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or the
Pricing Agreement or any provision herein or therein contained. This Agreement
and the Pricing Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the Underwriter and the
Company and their respective successors, heirs and legal representatives and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from the Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
46
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Registrants a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Registrants in accordance with its
terms.
Very truly yours,
JACOR COMMUNICATIONS, INC.
By: /s/ R. Christopher Weber
---------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Chief Financial Officer
47
<PAGE>
JACOR COMMUNICATIONS COMPANY**; BROADCAST
FINANCE, INC.; CINE FILMS, INC.; CINE
GUARANTORS, INC.; CINE GUARANTORS II,
INC.; CINE GUARANTORS II, LTD.; CINE
MOBILE SYSTEMS INT'L. N.V.; CINE MOVIL
S.A. DE C.V.; CITICASTERS CO.; GACC-N26LB,
INC.; GREAT AMERICAN MERCHANDISING GROUP,
INC.; GREAT AMERICAN TELEVISION
PRODUCTIONS, INC.; INMOBILIARIA RADIAL,
S.A. DE C.V.*; JACOR BROADCASTING
CORPORATION; JACOR BROADCASTING OF
ATLANTA, INC.; JACOR BROADCASTING OF
CHARLESTON, INC.; JACOR BROADCASTING OF
COLORADO, INC.; JACOR BROADCASTING OF
DENVER, INC.; JACOR BROADCASTING OF
FLORIDA, INC.; JACOR BROADCASTING OF
KANSAS CITY, INC.; JACOR BROADCASTING OF
LAS VEGAS, INC.; JACOR BROADCASTING OF LAS
VEGAS II, INC.; JACOR BROADCASTING OF
LOUISVILLE, INC.; JACOR BROADCASTING OF
LOUISVILLE II, INC.; JACOR BROADCASTING OF
SALT LAKE CITY, INC.; JACOR BROADCASTING
OF SALT LAKE CITY II, INC.; JACOR
BROADCASTING OF ST. LOUIS, INC.; JACOR
BROADCASTING OF SAN DIEGO, INC.; JACOR
BROADCASTING OF SARASOTA, INC.; JACOR
BROADCASTING OF TAMPA BAY, INC.; JACOR
BROADCASTING OF TOLEDO, INC.; JACOR
BROADCASTING OF YOUNGSTOWN, INC.; JACOR
CABLE, INC.; JACOR LICENSEE OF
48
<PAGE>
CHARLESTON, INC.; JACOR LICENSEE OF KANSAS
CITY, INC., JACOR LICENSEE OF LAS VEGAS,
INC.; JACOR LICENSEE OF LAS VEGAS II,
INC.; JACOR LICENSEE OF LOUISVILLE, INC.;
JACOR LICENSEE OF LOUISVILLE II, INC.;
JACOR LICENSEE OF SALT LAKE CITY, INC.;
JACOR LICENSEE OF SALT LAKE CITY II, INC.;
JACOR/PREMIERE HOLDING, INC.; JBSL, INC.;
LOCATION PRODUCTIONS, INC.; LOCATION
PRODUCTIONS II, INC.; MULTIVERSE
ACQUISITION CORP.***; NOBLE BROADCAST
CENTER, INC.; NOBLE BROADCAST GROUP, INC.;
NOBLE BROADCAST HOLDINGS, INC.; NOBLE
BROADCAST LICENSES, INC.; NOBLE BROADCAST
OF SAN DIEGO, INC.; NOBRO, S.C*.; NOVA
MARKETING GROUP, INC.; NSN NETWORK
SERVICES, LTD.; PREMIERE RADIO NETWORKS,
INC.***; RADIO-ACTIVE MEDIA, INC.; SPORTS
RADIO BROADCASTING, INC.; SPORTS RADIO,
INC.; THE SY FISCHER COMPANY AGENCY,
INC.;VTTV PRODUCTIONS; AND WHOK, INC.
By: /s/ R. Christopher Weber
---------------------------------
Name: R. Christopher Weber
Title: Senior Vice
President and Assistant
Secretary for all above
companies except those marked
with an *, of which he is
Treasurer of those marked with
an **, of which he is Senior
Vice President, Chief
Financial Officer and
Secretary, and those marked
49
<PAGE>
with an ***, of which he is
Senior Vice President
50
<PAGE>
CONFIRMED AND ACCEPTED, as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Brit J. Bartter
------------------------------
Name: Brit J. Bartter
Title: Managing Director
51
<PAGE>
4,560,000 Shares
JACOR COMMUNICATIONS, INC.
Common Stock
($.01 Par Value Per Share)
UNDERWRITING AGREEMENT
February 3, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN SACHS & CO.
MORGAN STANLEY & CO.
INCORPORATED
SMITH BARNEY INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Jacor Communications, Inc., a Delaware corporation (the "Company"),
and Jacor Communications Company ("JCC"); Broadcast Finance, Inc.; Cine
Films, Inc.; Cine Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors
II, Ltd.; Cine Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.;
Citicasters Co.; GACC-N26LB, Inc.; Great American Merchandising Group, Inc.;
Great American Television Productions, Inc.; Inmobilaria Radial, S.A. de
C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.;
Jacor Broadcasting of Charleston, Inc.; Jacor Broadcasting of Colorado, Inc.;
Jacor Broadcasting of Denver, Inc.; Jacor Broadcasting of Florida, Inc.;
Jacor Broadcasting of Kansas City, Inc.; Jacor Broadcasting of Las Vegas,
Inc.; Jacor Broadcasting of Las Vegas II; Jacor Broadcasting of Louisville,
Inc.; Jacor Broadcasting of Louisville II, Inc.; Jacor Broadcasting of Salt
Lake City, Inc.; Jacor Broadcasting of Salt Lake City II, Inc.; Jacor
Broadcasting of St. Louis, Inc.; Jacor
<PAGE>
Broadcasting of San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor
Broadcasting of Tampa Bay, Inc.; Jacor Broadcasting of Toledo, Inc.; Jacor
Broadcasting of Youngstown, Inc.; Jacor Cable, Inc.; Jacor Licensee of
Charleston, Inc.; Jacor Licensee of Kansas City, Inc., Jacor Licensee of Las
Vegas, Inc.; Jacor Licensee of Las Vegas II, Inc.; Jacor Licensee of
Louisville, Inc.; Jacor Licensee of Louisville II, Inc.; Jacor Licensee of
Salt Lake City, Inc.; Jacor Licensee of Salt Lake City II, Inc.;
Jacor/Premiere Holding, Inc.; JBSL, Inc.; Location Productions, Inc.;
Location Productions II, Inc.; Multiverse Acquisition Corp.; Noble Broadcast
Center, Inc.; Noble Broadcast Group, Inc.; Noble Broadcast Holdings, Inc.;
Noble Broadcast Licenses, Inc.; Noble Broadcast of San Diego, Inc.; Nobro,
S.C.; Nova Marketing Group, Inc.; NSN Network Services, Ltd.; Premiere Radio
Networks, Inc.; Radio-Active Media, Inc.; Sports Radio Broadcasting, Inc.;
Sports Radio, Inc.; The Sy Fischer Company Agency, Inc.;VTTV Productions; and
WHOK, Inc. each a direct or indirect subsidiary of the Company or any
successor entity, whether by merger, consolidation, change of name or
otherwise (collectively, the "Subsidiaries" and together with the Company,
the "Registrants") confirm their agreement with the several Underwriters
listed in Schedule I hereto (the "Underwriters") for whom Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJ"), Goldman, Sachs & Co., Morgan Stanley
& Co. Incorporated and Smith Barney Inc. (collectively, the
"Representatives") have been duly authorized to act as representatives as
follows:
1. THE SHARES. Subject to the terms and conditions herein set
forth, the Company proposes to sell to the Underwriters an aggregate of
4,560,000 shares (the "Firm Shares") of common stock, $.01 par value per
share, of the Company (the "Common Stock"). The Company also proposes to
sell to the several Underwriters an aggregate of not more than 513,000
additional shares of Common Stock (the "Additional Shares"), if requested by
the Underwriters as provided in Section 3 hereof. The Firm Shares and the
Additional Shares are herein collectively called the "Shares".
The Shares are being issued and sold to fund, in part, the
consideration to be paid by the Company under the Nationwide Agreement (as
defined below). Alternatively and pending such uses, the Company intends to use
the net proceeds for general corporate purposes, including acquisitions of other
broadcast properties and broadcast related businesses and to repay in part
outstanding indebtedness under the revolving credit component of the Credit
Facility (defined below).
The Pending Transactions (as such term is defined in the Prospectus)
include, among other things, the acquisition (the "Nationwide Acquisition") of
17 radio stations (the "Nationwide Stations") from Nationwide (as defined below)
pursuant to an Agreement of Sale (the "Nationwide Agreement") dated as of
December 19, 1997, by
2
<PAGE>
and among JCC, Citicasters Co. and Nationwide Communications, Inc.,
Nationwide Mutual Insurance Company, Employers Insurance of Wasau, San Diego
Lotus Corp. and The Beak and Wire Corporation (collectively, "Nationwide").
Prior to or concurrently with the issuance and sale of the Shares,
the Company and JCC, as applicable will (i) issue and sell liquid yield
option notes in the aggregate principal amount at maturity of $383,573,000
(excluding $43,344,000 aggregate principal amount at maturity subject to an
over-allotment option) due 2018 (the "LYONs"); and (ii) issue and sell $120.0
million aggregate principal amount of 8% Senior Subordinated Notes due 2010
(the "Sub Notes"). This Underwriting Agreement and all agreements and
documents executed in connection with the Pending Transactions and all
documents and agreements related to each of the offering of the LYONs (the
"LYONs Offering") and the offering of the Sub Notes (the "Sub Notes
Offering") are collectively referred to herein as the "Transaction
Documents."
2. REGISTRATION STATEMENT AND PROSPECTUS. The Registrants have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a "shelf" registration statement on Form S-3 (No.
333-40127), including a prospectus, relating to debt securities, preferred
stock, depository shares and common stock, and will promptly file with the
Commission a prospectus supplement specifically relating to the Shares
pursuant to Rule 424 under the Act. The registration statement, as amended
at the time it became effective or, if a post-effective amendment is filed
with respect thereto, as amended by such post-effective amendment at the time
of its effectiveness, including in each case, all documents incorporated or
deemed incorporated by reference therein, if any, all financial statements
and exhibits, and the information, if any, contained in a prospectus or term
sheet subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be a part of the registration statement at the time of
its effectiveness pursuant to Rule 430A or Rule 434 under the Act (as
applicable), and any additional registration statement relating to the
issuance of additional shares of Common Stock filed pursuant to Rule 462(b)
under the Act, is hereinafter referred to as the "Registration Statement";
and the prospectus, constituting a part of the Registration Statement at the
time it became effective, or such revised prospectus as shall be provided to
the Underwriters for use in connection with the offering of the Shares that
differs from the prospectus on file with the Commission at the time the
Registration Statement became effective including any prospectus supplement,
and including, in each case, all documents incorporated or deemed
incorporated by reference therein, if any, whether or not filed with the
Commission pursuant to Rule 424(b) under the Act, and including any
preliminary prospectus supplement subject to completion and any term
3
<PAGE>
sheet meeting the requirements of Rule 434(c), filed pursuant to Rule 424(b),
in the form used to confirm sales of the Shares, are hereinafter referred to
collectively as the "Prospectus."
3. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at a price per share of $48.48 (the "Purchase
Price") the aggregate number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Company
agrees to issue and sell to the Underwriters up to 513,000. Additional Shares,
(ii) the Underwriters shall have a right to purchase, severally and not jointly,
from time to time, up to an aggregate of 513,000. Additional Shares at the
Purchase Price. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as DLJ may determine) which bears the same proportion to the total number
of Additional Shares to be purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the total
number of Firm Shares.
The Company hereby agrees, and the Company shall, concurrently with
the execution of this Agreement, deliver an agreement executed by (i) each of
the directors and officers of the Company and (ii) Zell/Chilmark Fund, L.P.,
pursuant to which each such person will agree, not to, offer to sell, sell,
distribute, grant any option to purchase or otherwise dispose of, directly or
indirectly, any shares of Common Stock, or any securities convertible into or
exercisable or exchangeable for, shares of Common Stock owned by them, for a
period of 120 days after the date of the prospectus supplement, dated
February 3, 1998 (the "Prospectus Supplement"), except (A) with the prior
written consent of DLJ, (B) pursuant to this Agreement, (C) pursuant to stock
options or stock option plans referred to in the Prospectus or (D) in the
case of the Company, in connection with the issuance of shares of Common
Stock in connection with the conversion of the LYONs due 2011 (as defined
herein) and the LYONs and acquisition transactions in which the recipients of
such Shares are restricted from selling such Shares until after the
expiration of 120 days from the date of the Prospectus Supplement.
4
<PAGE>
In addition, the Company agrees it will inform certain former
shareholders of Regent Communications, Inc. who hold shares of the Company's
Common Stock and/or warrants for the Company's Common Stock that they may not
sell any of such shares or warrants pursuant to the shelf registration statement
currently in effect providing for the registration and distribution of such
shares and warrants for a period of 30 days from the date of the Prospectus.
4. DELIVERY AND PAYMENT. Delivery to you of and payment for the
Firm Shares shall be made at 9:00 A.M., New York City time, on February 9,
1998 (the "Closing Date"), at such place as DLJ shall reasonably designate.
The Closing Date and the location of delivery of the Firm Shares may be
varied by agreement between DLJ and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as DLJ shall
designate, at 9:00 A.M., New York City time, on such date or dates
(individually, an "Option Closing Date"), which may be the same as the Closing
Date but shall in no event be earlier than the Closing Date, as shall be
specified in a written notice from DLJ to the Company of the Underwriters'
determination to purchase a number, specified in said notice, of Additional
Shares. Any such notice may be given at any time not later than 30 days after
the date of this Agreement. Any Option Closing Date and the location of
delivery of and payment for the Additional Shares may be varied by agreement
among DLJ and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as DLJ shall request in writing not later than two
full business days prior to the Closing Date, or the applicable Option Closing
Date, as the case may be, and shall be made available to you at the offices of
DLJ (or such other place as shall be acceptable to you) for inspection not later
than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date, or the applicable Option Closing Date, as the case may be,
with any transfer taxes payable upon initial issuance thereof duly paid by the
Company, for the respective accounts of the Underwriters against payment of the
Purchase Price by wire transfer of Federal or other funds immediately available
in New York City, to the order of the Company.
5. AGREEMENTS OF THE REGISTRANTS. The Registrants agree with
each of you that:
5
<PAGE>
(a) The Registrants will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under the
Act, a post-effective amendment to the Registration Statement, in each
case as soon as practicable after the execution and delivery of this
Agreement, and will use their best efforts to cause their Registration
Statement or such post-effective amendment to become effective at the
earliest possible time. The Registrants will comply fully and in a timely
manner with the applicable provisions of Rule 424 and Rule 430A and, if
applicable, Rule 462, under the Act.
(b) The Registrants will advise you promptly and, if requested by
any of you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent for
filing pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission or any state securities
commission or regulatory authority that relate to the Registration
Statement or requests by the Commission or any state securities commission
or regulatory authority for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purpose by the Commission or any
state securities commission or any other regulatory authority, and (iv) of
the happening of any event during such period as in your reasonable
judgment you are required to deliver a prospectus in connection with sales
of the Shares by you which makes any statement of a material fact made in
the Registration Statement untrue or which requires the making of any
additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein
not misleading or that makes any statement of a material fact made in the
Prospectus (as amended or supplemented from time to time) untrue or which
requires the making of any additions to or changes in the Prospectus (as
amended or supplemented from time to time) in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Company shall use its best efforts to prevent the issuance
of any stop order or order suspending the qualification or exemption of the
Shares under any state securities or Blue Sky laws, and, if at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption of the
6
<PAGE>
Shares under any state securities or Blue Sky laws, the Company shall use
every reasonable effort to obtain the withdrawal or lifting of such order
at the earliest possible time.
(c) The Registrants will furnish to you without charge two (2) signed
copies (plus one (1) additional signed copy to your legal counsel) of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may reasonably
request.
(d) The Registrants will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus, of which
you shall not previously have been advised and provided a copy within two
business days prior to the filing thereof (or such reasonable amount of
time as is necessitated by the exigency of such amendment or supplement) or
to which you shall reasonably object; and the Registrants will prepare and
file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution of
the Shares by you, and will use their best efforts to cause any amendment
to the Registration Statement to become effective as promptly as possible.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period in your reasonable judgment
as a prospectus is required to be delivered in connection with sales of the
Shares by you, it will furnish to each Underwriter and dealer without
charge as many copies of the Prospectus (and of any amendment or supplement
to the Prospectus) as such Underwriters and dealers may reasonably request.
The Registrants consent to the use of the Prospectus and any amendment or
supplement thereto by any Underwriter or any dealer, both in connection
with the offering or sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act or the Exchange Act to
be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the Shares by
you any event shall occur as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing as of the date
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<PAGE>
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with any law, the Registrants will
promptly prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as
so amended or supplemented, will not, in the light of the circumstances
existing as of the date the Prospectus is so delivered, be misleading,
and will comply with applicable law, and will furnish to each Underwriter
and dealer without charge such number of copies thereof as such
Underwriters and dealers may reasonably request.
(g) Prior to any public offering of the Shares, the Company will
cooperate with you and your counsel in connection with the registration or
qualification of the Shares for offer and sale by you under the state
securities or Blue Sky laws of such jurisdictions as you may request
(provided, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to take
any action that would subject it to general consent to service of process
in any jurisdiction in which it is not now so subject). The Company will
continue such qualification in effect so long as required by law for
distribution of the Shares.
(h) The Company will make generally available to its security holders
as soon as reasonably practicable a consolidated earning statement covering
a period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder, and to
advise you in writing when such statement has been so made available.
(i) The Registrants will timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the
Exchange Act.
(j) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed, and (ii) from time to time such other information concerning the
Company as you may request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, the Registrants will pay and
be
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responsible for all costs, expenses, fees and taxes in connection with
or incident to (i) the printing, processing, filing, distribution and
delivery under the Act or the Exchange Act of the Registration Statement,
each preliminary prospectus, the Prospectus and all amendments or
supplements thereto, (ii) the printing, processing, execution, distribution
and delivery of this Agreement, any memoranda describing state securities
or Blue Sky laws and all other agreements, memoranda, correspondence and
other documents printed, distributed and delivered in connection with the
offering of the Shares, (iii) the registration with the Commission and the
issuance and delivery of the Shares, (iv) the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky laws of
the jurisdictions referred to in paragraph (g) above (including, in each
case, the fees and disbursements of counsel relating to such registration
or qualification and memoranda relating thereto and any filing fees in
connection therewith), (v) furnishing such copies of the Registration
Statement, Prospectus and preliminary prospectus, and all amendments and
supplements to any of them, as may be reasonably requested by you, (vi)
filing, registration and clearance with the NASD in connection with the
offering of the Shares (including any filing fees in connection therewith
and the fees and disbursements of counsel relating thereto), (vii) any
"qualified independent underwriter" as required by Section 2720 of the
Conduct Rules of the NASD (including fees and disbursements of counsel for
such qualified independent underwriter), (viii) the printing, processing,
execution, distribution and delivery of the Transaction Documents and all
other agreements, memoranda, correspondence and other documents, printed,
distributed and delivered in connection with the Transaction Documents and
(ix) the performance by the Registrants of their other obligations under
this Agreement, the cost of their personnel and other internal costs, the
cost of printing and engraving the certificates representing the Shares,
and all expenses and taxes incident to the sale and delivery of the Shares
to you.
(l) The Company will use the proceeds from the sale of the Shares in
the manner described in the Prospectus under the caption "Use of Proceeds."
(m) The Company will cause the Shares to be quoted on the Nasdaq
National Market and will use its reasonable best efforts to maintain such
quotation while any of the Shares are outstanding.
(n) The Registrants will use their best efforts to do and perform all
things required to be done and performed under this Agreement by them prior
9
<PAGE>
to or after the Closing Date and to satisfy all conditions precedent on
their part to the delivery of the Shares.
(o) The Company will timely complete all required filings and
otherwise comply fully in a timely manner with all provisions of the
Exchange Act, and will file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14(a) or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of the Prospectus is required in connection with the offer or
sale of the Shares.
(p) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date and the latest applicable
Option Closing Date, as the case may be, except as described under
"Transactions" in the Prospectus with respect to the Pending Transactions
and under "Prospectus Supplement Summary-Recent Developments" with respect
to certain other potential transactions, there will be no transactions
entered into by the Company or any of its Subsidiaries which are material
with respect to the Company or any of the Subsidiaries, respectively, taken
individually or as a whole, as determined in accordance with the provisions
of Rule 3-05 of Regulation S-X or other standards for materiality as may be
agreed upon by the Company and the Underwriters and there will be no
dividend or distribution of any kind declared, paid or made by the Company
on any class of capital stock or other equity interests.
6. REPRESENTATIONS AND WARRANTIES. The Registrants represent and
warrant to each of you that:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus (if
different) and at the Closing Date, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date of
any such supplements or amendments and at the Closing Date contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements
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in or omissions from the Registration Statement or the Prospectus (or any
supplement or amendment to them) made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by or on behalf of any Underwriter through DLJ expressly for use
therein. The Company acknowledges for all purposes under this Agreement
that the statements with respect to price and underwriting discount and
the last paragraph all as set forth on the cover page and in paragraphs
three, seven and eight under the caption "Underwriting" in the Prospectus
(or any amendment or supplement) constitute the only written information
furnished to the Company by DLJ expressly for use in the Registration
Statement or the Prospectus (or any amendment or supplement to them) and
that the Underwriters shall not be deemed to have provided any other
information (and therefore are not responsible for any such statement
or omission).
(b) Any term sheet and prospectus subject to completion provided by
the Company to the Underwriters for use in connection with the offering and
sale of the Shares pursuant to Rule 434 under the Act together are not
materially different from the Prospectus included in the Registration
Statement.
(c) Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each Registration
Statement filed pursuant to Rule 462(b) under the Act, if any, complied
when so filed in all material respects with the Act.
(d) The Company and each of its Subsidiaries has been duly organized,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of organization and has the requisite corporate power and
authority to carry on its business as it is currently being conducted, to
own, lease and operate its properties and, as applicable, to authorize the
offering of the Shares, to execute, deliver and perform this Agreement, and
to issue, sell and deliver the Shares, and to execute, deliver and perform
the Transaction Documents, as applicable, and each is duly qualified and is
in good standing as a foreign corporation authorized to do business in each
jurisdiction where the operation, ownership or leasing of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified could not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the respective
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of each of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect").
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<PAGE>
(e) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each Subsidiary have been duly and validly
authorized and issued, and all of the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or through
Subsidiaries, by the Company and, upon completion of the transactions
contemplated by the Transaction Documents, substantially all of the assets
of the Nationwide Stations (other than as described in the Prospectus) will
be owned directly or through Subsidiaries, by the Company. All such shares
of capital stock are fully paid and nonassessable, and are owned free and
clear of any security interest, mortgage, pledge, claim, lien or
encumbrance (each, a "Lien"), except for Liens arising under the Amended
and Restated Credit Agreement, dated as of September 16, 1997, by and among
The Chase Manhattan Bank, as Administrative Agent, Banque Paribas, as
Documentation Agent, and Bank of America, Illinois, as Syndication Agent
(the "Credit Facility".) There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or
Liens related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other ownership interest in,
any Subsidiary.
(f) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"; all the
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and not subject to any
preemptive or similar rights; the Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
fully paid and nonassessable; the capital stock of the Company, including
the Common Stock, conforms in all material respects to all statements
relating thereto in the Prospectus and the Registration Statement; and the
issuance of the Shares by the Company will not be subject to preemptive or
other similar rights.
(g) None of the Company or any of the Subsidiaries and is in
violation of their respective charters or bylaws or in default in the
performance of any bond, debenture, note or any other evidence of
indebtedness or any indenture, mortgage, deed of trust or other contract,
lease or other instrument to which the Company or any of the Subsidiaries
is a party or by which any of them is bound, or to which any of the
property or assets of the Company or any of the Subsidiaries is subject.
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<PAGE>
(h) The Transaction Documents have been duly authorized and validly
executed and delivered by the Registrants and constitute valid and legally
binding agreements of the Registrants, as applicable, enforceable against
the Registrants, as applicable, in accordance with their terms (assuming,
in the case of each of the Transaction Documents, the due execution and
delivery thereof by each party thereto).
(i) The execution and delivery of this Agreement by the Registrants,
the issuance and sale of the Shares, the performance of this Agreement and
the consummation of the transactions contemplated by this Agreement and the
execution and delivery of the Transaction Documents by each of the
Registrants, as applicable, and the consummation of the Pending
Transactions will not (1) conflict with or result in a breach or violation
of any of the respective charters or bylaws of the Company or any of the
Subsidiaries or any of the terms or provisions of, or (2) constitute a
default or cause an acceleration of any obligation under or result in the
imposition or creation of (or the obligation to create or impose) a Lien
with respect to, any bond, note, debenture or other evidence of
indebtedness or any indenture, mortgage, deed of trust or other agreement
or instrument to which the Company or any of the Subsidiaries is a party or
by which it or any of them is bound, or to which any properties of the
Company or any of the Subsidiaries or is or may be subject, or (3)
contravene any order of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of their
properties, or violate or conflict with any statute, rule or regulation or
administrative or court decree applicable to the Company or any of the
Subsidiaries or any of their respective properties.
(j) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries or Nationwide with respect
to the Nationwide Stations or any of their respective properties, which is
required to be disclosed in the Registration Statement or the Prospectus,
or which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect or which could reasonably be
expected to materially and adversely affect the consummation of this
Agreement or the transactions contemplated hereby or the consummation of
the Transaction Documents or the Pending Transactions, and to the best of
the Company's knowledge, no such proceedings are contemplated or
threatened. No contract or document of a character required to be
described in the Registration Statement or the
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Prospectus or to be filed as an exhibit to the Registration Statement is
not so described or filed.
(k) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Shares, suspends the effectiveness
of the Registration Statement, prevents or suspends the use of any
preliminary prospectus or suspends the sale of the Shares in any
jurisdiction referred to in Section 4(g) hereof; no injunction, restraining
order or order of any nature by a Federal or state court of competent
jurisdiction has been issued with respect to the Company or any of the
Subsidiaries which would prevent or suspend the issuance or sale of the
Shares, the effectiveness of the Registration Statement, or the use of any
preliminary prospectus in any jurisdiction referred to in Section 4(g)
hereof; no action, suit or proceeding is pending against or, to the best
of the Company's knowledge, threatened against or affecting the Company or
any of the Subsidiaries before any court or arbitrator or any governmental
body, agency or official, domestic or foreign, which, if adversely
determined, would materially interfere with or adversely affect the
issuance of the Shares or in any manner draw into question the validity
of the Transaction Documents; and every request of the Commission or any
securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) has been complied with in all material respects.
(l) (i) None of the Company, any of the Subsidiaries and Nationwide
with respect to the Nationwide Stations is in violation of any Federal,
state or local laws and regulations relating to pollution or protection of
human health or the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata),
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of toxic or hazardous
substances, materials or wastes, or petroleum and petroleum products
("Materials of Environmental Concern"), or otherwise relating to the
protection of human health and safety, or the storage, disposal, transport
or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations, except
to the extent that any such violation could not have a Material Adverse
Effect or otherwise require disclosure in the Prospectus; and (ii) to the
best knowledge of the Company and any of the Subsidiaries, after due
inquiry, (A) none of the Company, any of the Subsidiaries, Nationwide
with respect to the Nationwide Stations and any of the other parties to
the Transaction Documents (the "Pending
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Transaction Parties") with respect to the properties and radio stations
to be purchased or sold pursuant to the Transaction Documents (the
"Pending Properties") has received any communication (written or oral),
whether from a governmental authority or otherwise, alleging any such
violation or noncompliance, and there are no circumstances, either past,
present or that are reasonably foreseeable, that may lead to such
violation in the future, (B) there is no pending or threatened claim,
action, investigation or notice (written or oral) by any person or
entity alleging potential liability for investigatory, cleanup, or
governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned or operated by the Company, any of the
Subsidiaries, Nationwide with respect to the Nationwide Stations, and the
Pending Transaction Parties with respect to the Pending Properties, now
or in the past, or (y) circumstances forming the basis of any violation,
or alleged violation, of any Environmental Law (collectively,
"Environmental Claims") that could have a Material Adverse Effect or
otherwise require disclosure in the Prospectus, and (C) there are no past
or present actions, activities, circumstances, conditions, events or
incidents, that could form the basis of any Environmental Claim against
the Company, any of the Subsidiaries, Nationwide with respect to the
Nationwide Stations, and the Pending Transaction Parties with respect
to the Pending Properties, or against any person or entity whose
liability for any Environmental Claim the Company, any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations, and the Pending
Transaction Parties with respect to the Pending Properties, have retained
or assumed either contractually or by operation of law. In the ordinary
course of its business, each of the Company and the Subsidiaries and
Nationwide with respect to the Nationwide Stations conducts a periodic
review of the effect of Environmental Laws on its business, operations
and properties in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties); on the basis of such review, the Company
and the Subsidiaries, have reasonably concluded that such associated costs
and liabilities could not have a Material Adverse Effect.
(m) None of the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations, and to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
violated
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any Federal, state or local law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable wage or hour laws,
nor any provisions of the Employee Retirement Income Security Act of 1974
("ERISA") or the rules and regulations promulgated thereunder, nor has the
Company or any of the Subsidiaries or Nationwide with respect to the
Nationwide Stations or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, engaged in any
unfair labor practice, which in each case described in this sentence could
reasonably be expected to result, singly or in the aggregate, in a Material
Adverse Effect. There is (i) no significant unfair labor practice
complaint pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, before the National Labor Relations Board or any state or
local labor relations board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage pending against the Company or any of its Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
the Company or any of the Subsidiaries, Nationwide with respect to the
Nationwide Stations, or the Pending Transaction Parties with respect to the
Pending Properties and (iii) to the best knowledge of the Company, no union
representation question existing with respect to the employees of the
Company or any of the Subsidiaries, or the Pending Transaction Parties with
respect to the Pending Properties, and, to the best knowledge of the
Company, no union organizing activities are taking place, except (with
respect to any matter specified in clause (i), (ii) or (iii) above, singly
or in the aggregate) such as could not have a Material Adverse Effect.
(n) The Company, each of its Subsidiaries and Nationwide with respect
to the Nationwide Stations each have good and marketable title, free and
clear of all Liens, to all property and assets described in the
Registration Statement as being owned by it, except for (i) Liens pursuant
to the Credit Facility, (ii) Liens on general office equipment which
are not material to the Company's operations and (iii) Liens on the
Nationwide Stations which will be released upon
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consummation of the Nationwide Acquisition. All
leases to which the Company, the Subsidiaries or Nationwide with respect to
the Nationwide Stations are a party are valid and binding and no default
has occurred or is continuing thereunder and the Company, each of its
Subsidiaries and Nationwide with respect to the Nationwide Stations enjoy
peaceful and undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not materially
interfere with the use made by the Company or any such Subsidiary or
Nationwide with respect to the Nationwide Stations.
(o) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, E.F.M. Media Management, Inc., E.F.M. Publishing,
Inc., PAM Media, Inc., Archon Communications, Inc., Synergy Broadcast
Investment Enterprises, L.L.C., Worldstar, Inc., Multiverse Networks
L.L.C., Shanahan Broadcasting, Inc., (collectively, the "C&L Audited
Companies"), Nationwide, Premiere and Jacor Broadcasting of Youngstown,
Inc. filed, to be filed or incorporated by reference with the Commission
as part of the Registration Statement and the Prospectus are independent
public accountants with respect to the Company, the Subsidiaries, the C&L
Audited Companies, Premiere, Nationwide and Jacor Broadcasting of
Youngstown, Inc. as required by the Act. The consolidated historical and
PRO FORMA financial statements, together with related schedules and notes,
set forth in the Prospectus and the Registration Statement comply as to
form in all material respects with the requirements of the Act. Such
historical financial statements fairly present the consolidated financial
position of the Company, the Subsidiaries, the C&L Audited Companies,
Premiere, Nationwide and Jacor Broadcasting of Youngstown, Inc. at the
respective dates indicated and the results of their operations and their
cash flows for the respective periods indicated, in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout such periods. Such PRO FORMA financial statements have been
prepared on a basis consistent with such historical statements, except for
the PRO FORMA adjustments specified therein, and give effect to
assumptions made on a reasonable basis and present fairly the historical
and proposed transactions contemplated by the Prospectus and the
Transaction Documents. The other financial and statistical information
and data included in the Prospectus and in the Registration Statement,
historical and PRO FORMA, are, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company, the C&L Audited
Companies, Premiere, Nationwide and Jacor Broadcasting of Youngstown, Inc.
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(p) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company, any of the Subsidiaries or Nationwide
with respect to the Nationwide Stations have incurred any liabilities or
obligations, direct or contingent, which are material to the Company and
the Subsidiaries taken as a whole, nor entered into any transaction not
in the ordinary course of business and there has not been, singly or in
the aggregate, any material adverse change, or any development which could
reasonably be expected to involve a material adverse change, in the
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company and the Subsidiaries taken
as a whole (a "Material Adverse Change").
(q) All tax returns required to be filed by the Company and any of
the Subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without penalty or interest.
(r) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in
connection with the transactions contemplated by the Transaction
Documents, except such as may (i) be required by the NASD, (ii) are
disclosed in the Prospectus or (iii) have been obtained and made under
the Act, the Exchange Act, the Trust Indenture Act of 1939, as amended
(the "TIA") or state securities or "Blue Sky" laws or regulations.
Neither the Company nor any of its affiliates is presently doing
business with the government of Cuba or with any person or affiliate
located in Cuba.
(s) (i) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
any of the Pending Transaction Parties with respect to the Pending
Properties, has all certificates, consents, exemptions, orders, permits,
licenses, authorizations, or other approvals (each, an "Authorization") of
and from, and has made all declarations and filings with, all Federal,
state, local and other governmental authorities (including the Federal
Communications Commission ("FCC")), all self-regulatory organizations
and all courts and other tribunals, necessary or required to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent that the
failure to obtain or file could not, singly or in the aggregate,
reasonably be
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expected to have a Material Adverse Effect, (ii) all such Authorizations
are valid and in full force and effect, (iii) each of the Company, the
Subsidiaries and Nationwide with respect to the Nationwide Stations and,
to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, is in compliance in all material
respects with the terms and conditions of all such Authorizations and
with the rules and regulations of the regulatory authorities and
governing bodies having jurisdiction with respect thereto and (iv) each
commercial radio broadcast station identified in the Prospectus as owned
and operated by any of the Company, the Subsidiaries or Nationwide with
respect to the Nationwide Stations, or, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, as
applicable, is operating with the maximum facilities specified by the
Authorization pertaining thereto.
(t) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding company" or a "subsidiary company" of a holding company,
or an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(u) No holder of any security of the Company has or will have any
right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
(v) The Shares have been approved for quotation on the Nasdaq
National Market, subject to notice of issuance.
(w) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
possesses the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by them in connection with the businesses now
operated by them, and none of the Company, the Subsidiaries and Nationwide
with respect to the Nationwide Stations, and, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, has received any notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which, singly or in
the
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aggregate, could reasonably be expected to result in any Material
Adverse Change. The use of such Intellectual Property in connection with
the business and operations of each of the Company, the Subsidiaries and
Nationwide with respect to the Nationwide Stations, and, to the knowledge
of the Company, the Pending Transaction Parties with respect to the Pending
Properties does not, to the Company's knowledge, infringe on the rights of
any person except where any such infringement has not resulted in, or could
not reasonably be expected to result in any Material Adverse Change.
(x) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
(y) Each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (1) transactions
are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (3) access to assets is permitted only in accordance
with management's general or specific authorization; and (4) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(z) The Company has not (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which could
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares or (ii) since the initial filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Shares or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(aa) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
maintains insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and its Subsidiaries and
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their businesses. None of the Company, any Subsidiary and Nationwide with
respect to the Nationwide Stations, and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
has received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be
made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be outstanding
and duly in force on the Closing Date.
(bb) Neither the Company nor Nationwide with respect to the Nationwide
Stations has, directly or indirectly, paid or delivered any fee, commission
or other sum of money or item or property, however characterized, to any
finder, agent, government official or other party, in the United States or
any other country, which is in any manner related to the business or
operations of the Company or Nationwide with respect to the Nationwide
Stations, respectively, which the Company knows or has reason to believe to
have been illegal under any Federal, state or local laws of the United
States or any other country having jurisdiction; and neither the Company
nor Nationwide with respect to the Nationwide Stations has participated,
directly or indirectly, in any boycotts or other similar practices in
contravention of law affecting any of its actual or potential customers.
(cc) The Company does not own any "margin securities" as that term is
defined in Regulations G and U of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), and, except as disclosed in
the Prospectus, none of the proceeds of the sale of the Shares will be
used, directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or
for any other purpose which might cause any of the Shares to be considered
a "purpose credit" within the meanings of Regulation G, T, U or X of the
Federal Reserve Board.
(dd) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to a local
marketing agreement or a joint sales agreement (a "Licensee") has been
issued by the FCC an FCC license (which is in full force and effect) for
the operation of the commercial radio broadcast station identified in the
Prospectus as programmed by the Company or any of its Subsidiaries, which
licenses expire on the dates set forth in the Prospectus.
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(ee) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to an
exclusive sales agency agreement (a "Mexican Licensee"), has been issued by
the Mexican government all necessary Mexican licenses (which are in full
force and effect) for the operation of the commercial radio broadcast
station identified in the Prospectus as programmed by the Company or any of
its Subsidiaries. Each of the Company and its Subsidiaries have all
Authorizations necessary to deliver programming to the Mexican Licensees.
(ff) Each of the Company, its Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
filed with the FCC all material reports, documents, instruments,
information and applications required to be filed pursuant to the FCC's
rules, regulations and requests. No notice has been issued by the FCC
which could permit, or after notice or lapse of time or both could permit,
revocation or termination of any FCC license of any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or to the knowledge of the Company, of any of the Licensees
prior to the expiration dates thereof or which could reasonably be expected
to result in any other material impairment of any of the Subsidiaries', or
Nationwide with respect to the Nationwide Stations or its subsidiaries, or,
to the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries with respect to the Pending Properties, or, to the knowledge
of the Company, of any of the Licensees' rights thereunder and which could
reasonably be expected to, singly or in the aggregate, have a Material
Adverse Effect.
(gg) Each of the Company's radio and television stations (the
"Stations")is now operating, and has operated, in compliance in all
material respects with the Communications Act of 1934, as amended (the
"Communications Act"), and the published rules and regulations of the FCC.
There is not issued, outstanding or pending any Notice of Violation, Notice
of Apparent Liability, Order to Show Cause, material complaint or
investigation by or before the FCC which could materially threaten or
materially adversely affect any of the Company's or any of its
Subsidiaries', Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries' with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' FCC licenses or which could reasonably be
expected to result in any material adverse effect upon any of the Company's
Subsidiaries, Nationwide with respect to the Nationwide
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Stations, or, to the knowledge of the Company, the Pending Transaction
Parties or their subsidiaries with respect to the Pending Properties, or,
to the knowledge of the Company, any Licensees' operation of its
respective stations and which could reasonably be expected to, singly or
in the aggregate, have a Material Adverse Effect, nor does the Company
have reason to believe that the FCC licenses with respect to the Stations
will not be renewed for a full eight year term when such FCC licenses
are due for renewal.
(hh) The execution, delivery and performance of the obligations by
the Company under this Agreement are not and will not be contrary to the
Communications Act, as amended, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
(ii) Other than for the divestiture of two radio stations in San
Diego, California as described in the Prospectus, the execution, delivery
and performance of the obligations by JCC, Citicasters Co. and Nationwide
(each, a "Nationwide Transaction Party" and, collectively, the "Nationwide
Transaction Parties") and, to the knowledge of the Company, by the Pending
Transaction Parties with respect to the Pending Properties to the extent
each is a party to the Transaction Documents are not and will not be
contrary to the Communications Act, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
Other than the applications relating to the divestiture of two radio
stations in San Diego, California, all necessary applications, exhibits or
other filings required by the FCC for transfer of control of the Stations
now controlled by the Pending Transaction Parties with respect to the
Pending Properties pursuant to the applicable Transaction Documents have
been filed with the FCC (the "Transfer Applications"). To the best of the
Company's knowledge, there are no circumstances that would cause the FCC to
reject the Transfer Applications.
(jj) The Nationwide Transaction Parties and, to the knowledge of the
Company, the Pending Transaction Parties, have, to the extent each is or
will be a party thereto, all requisite corporate power and authority to
execute, deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Nationwide Transaction
Parties and,
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to the knowledge of the Company, the Pending Transaction Parties, to the
extent each is a party thereto, and each constitutes a valid and legally
binding agreement of the Nationwide Transaction Parties and, to the
knowledge of the Company, the Pending Transaction Parties, enforceable
against each Nationwide Transaction Party or Pending Transaction Party, as
applicable, in accordance with its terms; except as set forth in the
Prospectus, no consent, approval, authorization or order of any court or
governmental agency or body is required for the performance of any of the
Transaction Documents by each of the Nationwide Transaction Parties or,
to the knowledge of the Company, each Pending Transaction Party, to the
extent each is a party thereto, or the consummation by each of the
Nationwide Transaction Parties, or to the knowledge of the Company,
each of the Pending Transaction Parties, of any of the transactions
contemplated thereby, except such as may be required and have been
obtained, or upon effectiveness of the Registration Statement, will have
been obtained, under the Act, the Exchange Act, the TIA, or state
securities or "Blue Sky" laws or regulations or such as may be required by
the NASD in connection with the purchase and distribution of the Shares by
the Underwriters; and none of the Nationwide Transaction Parties, is (i) in
violation of its charter or bylaws, (ii) in violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or
any of their respective properties or assets, which violation would have a
Material Adverse Effect, or (iii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any of the Transaction Documents or any other contract, indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, permit, Authorizations, certificate or agreement or instrument
to which any of them is a party or to which any of them is subject, which
default would have a Material Adverse Effect.
(kk) The execution, delivery and performance by the Nationwide
Transaction Parties, to the extent each is a party thereto, of each of the
Transaction Documents, and the consummation by the respective Nationwide
Transaction Parties of the transactions contemplated thereby, will not
violate, conflict with or constitute or result in a breach of or a default
under (or an event which, with notice or lapse of time, or both, would
constitute a breach of or a default under) any of (i) the terms or
provisions of any of the Transaction Documents or any other indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, or agreement or instrument to which a Nationwide Transaction
Party, is a party or to which any of their respective properties or assets
are subject, which violation, conflict, breach or default would have a
Material Adverse Effect, (ii) the charter or bylaws of the
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Nationwide Transaction Party, or (iii) any statute, judgment, decree,
order, rule or regulation of any court, governmental agency or other body
or self regulatory organization applicable to each Nationwide Transaction
Party, or any of their respective properties or assets, which violation,
conflict, breach or default would have a Material Adverse Effect.
(ll) The Nationwide Acquisition has been duly authorized by the
Nationwide Transaction Parties and the transactions contemplated by the
Transaction Documents have been approved, to the extent required, by all
appropriate corporate action; approval of the transactions contemplated by
the Transaction Documents by the shareholders of the Company is not
required.
(mm) The Company has delivered to the Underwriters a true and
correct copy of each of the Transaction Documents that have been
executed and delivered prior to the date of this Agreement and each
other Transaction Document in the form substantially as it will be
executed and delivered, together with all related agreements and all
schedules and exhibits thereto, and there have been no amendments,
alterations, modifications or waivers of any of the provisions of any of
the Transaction Documents since their date of execution or from the form
in which it has been delivered to the Underwriters; there exists as of
the date hereof (after giving effect to the transactions contemplated by
the Transaction Documents) no event or condition which would constitute
a default or an event of default (in each case as defined in the Credit
Facility, the LYONs due 2011, the 10-1/8% Notes, the 9-3/4% Notes, the
8-3/4% Notes, the LYONs or the Sub Notes, respectively) under the Credit
Facility, the LYONs due 2011, the 10-1/8% Notes, the 9-3/4% Notes, the
8-3/4% Notes, the LYONs or the Sub Notes, respectively, and no event or
condition which would constitute a default or an event of default (in
each case as defined in each of the Transaction Documents) under any of
the Transaction Documents other than the Credit Facility, the LYONs due
2011, the 10-1/8% Notes, the 9-3/4% Notes, the 8-3/4% Notes, the LYONs
or the Sub Notes, which would result in a Material Adverse Effect or
materially adversely effect the ability of each of the Company or
Nationwide to consummate the transactions contemplated by the
Transaction Documents. For purposes of this Agreement, "LYONS DUE 2011"
means the liquid yield option notes due 2011 issued by the Company
pursuant to an Indenture, dated as of June 12, 1996, by and between the
Company and the Bank of New York; "10-1/8% NOTES" means the 10-1/8%
Senior Subordinated Notes
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due 2006 issued by JCAC, Inc. (predecessor to JCC), pursuant to an
Indenture, dated as of June 12, 1996, by and among JCAC, Inc., the
Company and First Trust of Illinois, National Association; "9-3/4%
NOTES" means the 9-3/4% Senior Subordinated Notes due 2006 issued by JCC
pursuant to an Indenture, dated as of December 17, 1996, by and among
JCC, the Company, the Subsidiary Guarantors named therein and the Bank
of New York; and "8-3/4% NOTES" means the 8-3/4% Senior Subordinated
Notes due 2007 issued by JCC pursuant to an Indenture, dated as of June
11, 1997, by and among JCC, the Company, the Subsidiary Guarantors named
therein and the Bank of New York.
(oo) The Company has filed with the Commission all filings that are
required to be filed as of the date hereof with respect to the financial
statements of each of the Nationwide Transaction Parties and each of the
Pending Transaction Parties in filings made under the Act and under the
Exchange Act, specifically as required by Rule 3-05 of Regulation S-X and
General Instructions and Item 7 of Form 8-K.
(pp) Each of the representations and warranties contained in each of
the Transaction Documents are true and correct on and as of the date
hereof, except as could not have a Material Adverse Effect.
(qq) The Company meets the requirements for registering an offering
of securities with the Commission on registration statement Form S-3
pursuant to the standards for those Forms prior to October 21, 1992.
(rr) The LYONs have received a rating of B3 from Moody's Investors
Service ("Moody's"); and the Sub Notes have received a rating of B2 from
Moody's.
(ss) Immediately after any sale of the Shares, the LYONs and the Sub
Notes by the Company or JCC, as applicable, the aggregate amount of
securities that have been issued and sold by the Company or JCC, as
applicable (including the Shares, the Sub Notes and the LYONs) will not
exceed the amount of securities registered under the Registration
Statement.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (i) each of
the Underwriters and (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) any of
the Underwriters (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any of the Underwriters or
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any controlling person (any person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an "Indemnified Person") to the
fullest extent lawful, from and against any and all losses, claims,
damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Person) directly or indirectly caused by,
related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement or the
Prospectus (including any amendment or supplement thereto) or any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, PROVIDED,
HOWEVER, that (i) except insofar as such losses, claims, damages,
liabilities, judgments, actions or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made
in reliance upon and in conformity with information relating to any of the
Underwriters furnished in writing to the Company by DLJ expressly for use
in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or any preliminary prospectus,
(ii) the foregoing indemnity agreement with respect to any untrue statement
contained in or omission from a preliminary prospectus shall not inure to
the benefit of the Underwriter from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased Shares, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of the
Underwriters to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Shares to such person and the
untrue statement contained in or omission from such preliminary prospectus
was corrected in the Prospectus (or the Prospectus as amended or
supplemented). The Company shall notify you promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental
investigation) or litigation in connection with the matters addressed by
this Agreement which involves the Company or an Indemnified Person.
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<PAGE>
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the Company,
such Underwriter (or the Underwriter controlled by such controlling person)
shall promptly notify the Company in writing (provided, that the failure to
give such notice shall not relieve the Company of its obligations pursuant
to this Agreement). Such Indemnified Person shall have the right to employ
its own counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Company (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder). The Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) at any time for such Indemnified Persons, which firm
shall be designated by DLJ. The Company shall be liable for any settlement
of any such action or proceeding effected with the Company's prior written
consent, which consent will not be unreasonably withheld, and the Company
agrees to indemnify and hold harmless any Indemnified Person from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested the Company to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the second sentence of
this paragraph, the Company agrees that it shall be liable for any
settlement of any proceeding effected without the Company's written consent
if (i) such settlement is entered into more than 10 business days after
receipt by the Company of the aforesaid request, and (ii) the Company shall
not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. The Company shall not, without the
prior written consent of each Indemnified Person, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or
not any Indemnified Person is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of
each Indemnified Person from all liability arising out of such action,
claim, litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign
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the Registration Statement, any person controlling (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
and the officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity
from the Registrants to each of the Indemnified Persons, but only with
respect to claims and actions based on information relating to such
Underwriter furnished in writing by DLJ expressly for use in the
Prospectus.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, judgments,
actions and expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying parties and the indemnified
party, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and any of the
Underwriters, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by such Underwriter, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The indemnity and
contribution obligations of the Company set forth herein shall be in
addition to any liability or obligation the Company may otherwise have to
any Indemnified Person.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
PRO RATA allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the
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equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities, judgments, actions or
expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, none of the Underwriters (and its related
Indemnified Persons) shall be required to contribute any amount in excess
of the amount by which the total underwriting discount applicable to the
Shares underwritten by it and distributed to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7(d) are
several in proportion to the respective number of Shares purchased by each
of the Underwriters hereunder and not joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Company under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Shares contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. The
Company shall have performed or complied with all of its obligations
and agreements herein contained and required to be performed or complied
with by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule 430A
promulgated under the Act, such post-effective amendment shall have become
effective) not later than 10:00 A.M. (and in the case of a Registration
Statement filed under Rule 462(b) of the Act, not later than 10:00 P.M.),
New York City time, on the date of this Agreement or at such later date and
time as you may
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approve in writing, (ii) at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission and every request for additional
information on the part of the Commission shall have been complied with
in all material respects, and (iii) no stop order suspending the sale of
the Shares in any jurisdiction referred to in Section 5(g) shall have been
issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Shares, the LYONs, or the Sub Notes and no injunction, restraining order
or order of any nature by a Federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance of the Shares or the consummation of the transactions
contemplated by the Transaction Documents.
(d) (i) Since the date hereof or since the dates as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Change, (ii) since the date
of the latest balance sheet included, or incorporated by reference, in the
Registration Statement and the Prospectus, there shall not have been any
material change in the capital stock or long-term debt, or material
increase in short-term debt, of the Company or any of the Subsidiaries
taken as a whole and (iii) the Company and the Subsidiaries taken as a
whole, shall have no liability or obligation, direct or contingent, that
is material to the Company and the Subsidiaries taken as a whole,
respectively, and is required to be disclosed on a balance sheet in
accordance with GAAP and is not disclosed on the latest applicable balance
sheet included in the Registration Statement and the Prospectus.
(e) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Vice President and a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(f) On the Closing Date, you shall have received:
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(1) an opinion (satisfactory to you and your counsel), dated the
Closing Date, of Graydon, Head & Ritchey, counsel for the Company (which
opinion shall, in regards to any matters covered by the law of the State
of Florida, rely on the opinion of Florida counsel reasonably acceptable
to the Underwriters), to the effect \that:
(i) (A) the Company and each of Jacor Cable, Inc., a
Kentucky corporation, Broadcast Finance, Inc., an Ohio
corporation; Citicasters Co., an Ohio corporation; Jacor
Broadcasting Corporation, an Ohio corporation; Jacor Broadcasting
of Youngstown, an Ohio corporation; WHOK, Inc., an Ohio
corporation; Jacor Broadcasting of Florida, Inc., a Florida
corporation; Jacor Broadcasting of Sarasota, Inc., a Florida
corporation; Jacor Broadcasting of Tampa Bay, Inc., a Florida
corporation; JCC, a Florida corporation; GACC-N26LB, Inc., a
Delaware corporation; Jacor Broadcasting of Charleston, Inc.,
a Delaware corporation; Jacor Broadcasting of Kansas City, Inc.,
a Delaware corporation; Jacor Broadcasting of Las Vegas, Inc.,
a Delaware corporation; Jacor Broadcasting of Las Vegas II, Inc.,
a Delaware corporation; Jacor Broadcasting of Louisville, Inc.,
a Delaware corporation; Jacor Broadcasting of Louisville II,
Inc., a Delaware corporation; Jacor Broadcasting of Salt Lake
City, Inc., a Delaware corporation; Jacor Broadcasting of Salt
Lake City II, Inc., a Delaware corporation; Jacor Broadcasting
of San Diego, Inc., a Delaware corporation; Jacor Broadcasting
of St. Louis, Inc., a Delaware corporation; Jacor Licensee of
Charleston, Inc., a Delaware corporation; Jacor Licensee of
Kansas City, Inc., a Delaware corporation; Jacor Licensee of
Las Vegas, Inc., a Delaware corporation; Jacor Licensee of
Las Vegas II, Inc., a Delaware corporation; Jacor Licensee of
Louisville, Inc, a Delaware corporation; Jacor Licensee of
Louisville II, Inc., a Delaware corporation; Jacor Licensee of
Salt Lake City, Inc., a Delaware corporation; Jacor Licensee of
Salt Lake City II, Inc., a Delaware corporation; Jacor/Premiere
Holding, Inc., a Delaware corporation; Multiverse Acquisition
Corp., a Delaware corporation; Noble Broadcasting Group, Inc.,
a Delaware corporation; Noble Broadcasting Holdings, Inc., a
Delaware corporation; NSN Network Services, Ltd., a Delaware
corporation; Premiere Radio Networks, Inc., a Delaware
corporation, and Radio-Active Media, Inc., a Delaware
corporation, is a duly organized and validly existing corporation
in good standing under the laws of its jurisdiction of
incorporation, has the requisite corporate power and authority
to own, lease and operate its properties and to
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conduct its business as described in the Registration Statement
and the Prospectus, and is duly qualified as a foreign
corporation and in good standing in each jurisdiction where the
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except where the failure
to be so qualified could not be reasonably expected to have,
singly or in the aggregate, a Material Adverse Effect; and (B)
the Company has the requisite corporate power and authority to
execute, deliver and perform this Agreement;
(ii) the Transaction Documents have been duly authorized,
executed and delivered by the Registrants, as applicable;
(iii) the authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under
"Capitalization" and conforms in all material respects to the
descriptions thereof contained in the Registration Statement and
the Prospectus; (B) the shares of issued and outstanding Common
Stock, have been duly authorized and are validly issued and are
fully paid and nonassessable; (C) the Shares have been duly
authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and
nonassessable; and (D) the issuance of the Shares is not subject
to preemptive or other similar rights;
(iv) all of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Subsidiary listed
in subparagraph (i) above have been duly and validly authorized
and issued and are fully paid and nonassessable, and the shares
of capital stock of, or other ownership interests in, each
Subsidiary are owned, directly or through Subsidiaries, by the
Company, and are owned free and clear of any Lien, except for
Liens pursuant to the Credit Facility;
(v) to the knowledge of such counsel (after due inquiry)
there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or
Liens related to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of, or other ownership
interest in, any Subsidiary except as disclosed in the
Prospectus;
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<PAGE>
(vi) neither the Company nor any of the Subsidiaries is (A)
an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company
Act of 1940, as amended, or (B) a "holding company" or a
"subsidiary company" of a holding company, or an "affiliate"
thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended;
(vii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution
or delivery of the Shares, the LYONs or the Sub Notes will
violate Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System;
(viii) when authenticated in accordance with the terms of
the respective indenture and delivered to and paid for in
accordance with the terms of the respective underwriting
agreement, the LYONs and the Sub Notes will constitute valid and
legally binding obligations of the Company and JCC, respectively,
enforceable against the Company and JCC, respectively, in
accordance with their respective terms and entitled to the
benefits of the respective indenture, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and
remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at
law or in equity) and except to the extent that a waiver of
rights under any usury laws may be unenforceable;
(ix) to the best knowledge of such counsel, there is no
current, pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary or to which
any of their respective properties is subject of a character
required to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus;
(x) the descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material
respects and fairly present the information required to be
34
<PAGE>
shown; and such counsel does not know of any legal or
governmental proceedings required to be described in the
Registration Statement or Prospectus which are not described as
required or of any contracts or documents of a character required
to be described in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement which are
not described and filed as required; it being understood that
such counsel need express no opinion as to the financial
statements, notes or schedules or other financial data included
therein;
(xi) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any
supplements and term sheets thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by
Rule 424(b); and to the knowledge of such counsel (after due
inquiry) no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and
no proceedings therefor have been instituted or are pending
or contemplated under the Act;
(xii) no authorization, approval, consent or order of, or
filing with, any court or governmental body or agency is required
for the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been obtained
and made under the Act, the Exchange Act, state securities or
"Blue Sky" laws or regulations or such as may be required by the
NASD; no authorization, approval, consent or order of, or filing
with, any court or governmental body or agency is required for
the consummation by the Company, or Nationwide with respect to
the Nationwide Stations, of the transactions contemplated by the
applicable Transaction Documents, except as disclosed in the
Prospectus; the execution and delivery of this Agreement, the
issuance and sale of the Shares, the performance of this
Agreement and the consummation of the transactions contemplated
by this Agreement will not result in a breach or violation of any
of (A) any of the respective charters or bylaws of the Company or
any of the Subsidiaries or (B) to the knowledge of such counsel
(after due inquiry), the terms or provisions of any agreement or
instrument which is filed as an exhibit to the Registration
Statement and to which the Company or any of the Subsidiaries is
a party or by which any of them is bound, or to which any of the
properties of the Company or any of the Subsidiaries is subject,
or (C) to the knowledge of such counsel (after due inquiry)
constitute a default under, any statute, rule or regulation to
which the
35
<PAGE>
Company or any Subsidiary is bound or to which any of the
properties of the Company or any Subsidiary is subject or (D)
any order of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any
of their properties which conflict, breach or default in each of
the cases described in clauses (B), (C) and (D) could reasonably
be expected to have a Material Adverse Effect;
(xiii) at the time it became effective and on the Closing
Date, the Registration Statement complied as to form in all
material respects with the Act;
(xiv) to the knowledge of such counsel, neither the Company
nor the Subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to the
Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to result in a Material Adverse Change.
The use of such Intellectual Property in connection with the
business and operations of the Company and the Subsidiaries does
not, to the knowledge of such counsel, infringe on the rights of
any person;
(xv) to the best knowledge of such counsel, (A) there are no
franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments to which the Company, any of
the Subsidiaries or Nationwide with respect to the Nationwide
Stations are a party or by which any of them may be bound that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement other than those described therein or filed as exhibits
thereto and (B) no default exists in the due performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument so described or filed in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement, or any agreement
identified on a schedule attached to the opinion, except for
defaults which could not reasonably be expected to have a
Material Adverse Effect and (c) the statements in the Prospectus
under the captions "Description of Capital Stock" and "Shares
Eligible for Future Sale" insofar as they relate to statements of
law or legal conclusions are accurate in all material respects;
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<PAGE>
(xvi) the Company, the Subsidiaries and to the knowledge of
such counsel, Nationwide, to the extent each is a party thereto,
have full corporate power and authority to execute, deliver and
perform its respective obligations under the applicable
Transaction Documents;
(xvii) the Transaction Documents, assuming the
authorization, execution and delivery thereof by the parties
other than the Company and Nationwide constitute valid and
legally binding agreements of the respective parties thereto
enforceable against each of the parties, to the extent each is
a party thereto, inaccordance with their respective terms subject
to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights generally and to
principles of equity (regardless of whether enforcement is sought
in a proceeding at law or equity) and except to the extent that
a waiver of rights under usury laws may be unenforceable; and
(xviii) the approval of the transactions contemplated by the
Transaction Documents by the stockholders of the Company is not
required.
(2) Such counsel shall additionally state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants
for the Company, your representatives and your counsel in connection
with the preparation of the Registration Statement and Prospectus and
has considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements (except as indicated above); and such counsel
advises you that, on the basis of the foregoing, no facts came to
such counsel's attention that caused such counsel to believe that
the Registration Statement (as amended or supplemented, if
applicable), at the time such Registration Statement or any
post-effective amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading (other than information omitted therefrom
in reliance on Rule 430A under the Act), or the Prospectus (as
amended or supplemented), as of its date and the Closing Date,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. Without limiting
37
<PAGE>
the foregoing, such counsel may further state that the firm assumes
no responsibility for, and the firm has not independently verified,
the accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in the
Registration Statement.
(3) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Hogan & Hartson L.L.P., counsel for the Company with
respect to FCC and related matters to the effect that:
(i) those statements in the Prospectus (including the
statements incorporated by reference in the Prospectus, under
the caption "Business -- Federal Regulation of Radio
Broadcasting" in the Company's Form 10-K filed for the year
ended December 31, 1996) that describe provisions of the
Communications Act of 1934, as amended (the "Communications
Act"), and the FCC's published rules or regulations (for purposes
of this opinion only, the "Rules") are accurate descriptions in
all material respects.
(ii) Schedule 1 to this opinion sets forth a complete list
of the main station authorizations issued by the FCC to the
Company and its Subsidiaries (for purposes of this opinion only,
the "Licenses"). To such counsel's knowledge, the Licenses are
the only licenses, permits or authorizations required under the
Communications Act for the broadcast of signals on the main
station frequency of each of the radio stations listed on
Schedule 2 (for purposes of this opinion only, the "Jacor
Stations"). Except for the pending applications noted on
Schedule 1 hereto, the Licenses are in full force and effect (and
the time within which any administrative or judicial appeal,
reconsideration, rehearing or other review might be sought has
lapsed with respect to the grant of the authorizations for the
currently effective terms, and no such appeal, reconsideration,
rehearing, or other review has been taken or instituted), and are
held by the relevant Subsidiary, and the expiration date of each
License is set forth in Schedule 1 hereto. Except as indicated
on Schedule 3 to this opinion, the Licenses are not subject to
any conditions imposed by the FCC other than those that appear on
the Licenses or are customarily imposed by the FCC on radio
stations of the same class and type.
(iii) Except as listed in Schedule 4 hereto, there is no
proceeding or other administrative action pending or, to such
38
<PAGE>
counsel's knowledge, threatened, before the FCC against the
Company or any Subsidiary, which, if adversely determined, would
materially and adversely affect the business or financial
condition of the Company and its Subsidiaries, taken as a whole.
To such counsel's knowledge, except as listed on Schedule 5 to
this opinion, the Company and the Subsidiaries have filed with
the FCC during the current license term of each License all
material reports and forms required to be filed by the Company
and the Subsidiaries with the FCC with respect to the Jacor
Stations.
(iv) The execution and delivery by the Company and any
Subsidiary of the Transaction Documents, and the performance of
the obligations as of the date hereof by the Company under the
Underwriting Agreement, (i) do not violate the Communications
Act, (ii) do not violate any of the Rules, (iii) do not violate
the terms of any of the Licenses, (iv) do not cause any
forfeiture or impairment of any License and (v) do not require
any consent, approval or authorization of the FCC that has not
been obtained. Except as indicated on Schedule 6, all necessary
applications required by the FCC as of the date hereof for the
transfer of control or assignment of the licenses of the stations
described in the Prospectus under "Pending Radio Station
Transactions" have been filed with the FCC.
(g) You shall have received an opinion, dated the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"), counsel for the
Underwriters, in form and substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former), in form and
substance satisfactory to you, from Coopers & Lybrand L.L.P., Ernst & Young
LLP and KPMG Peat Marwick, independent public accountants, containing the
information and statements of the type ordinarily included in accountants'
"comfort letters" to Underwriters, with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus for each of (i) the Company and the C&L Audited
Companies, (ii) Premiere and (iii) Nationwide, respectively.
(i) Skadden Arps shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for
39
<PAGE>
the purpose of enabling them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, the Company shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
(k) At the Closing Date, the LYONs and the Shares shall have been
approved for quotation on the Nasdaq Stock Market's SmallCap Market and
Nasdaq National Market, respectively, subject to notice of issuance.
(l) There shall have been no amendments, alterations, modifications,
or waivers of any provisions of the Transaction Documents since the date of
the execution and delivery thereof by the parties thereto other than those
which under the Act are not required to be disclosed in the Prospectus or
any supplement thereto and which have been disclosed to the Underwriters
prior to the date hereof.
(m) Each of the Company, and Nationwide, shall, to the extent each
is a party thereto, have complied in all respects with all agreements and
covenants in the Transaction Documents and performed all conditions
specified therein that the terms thereof require to be complied with or
performed at or prior to the date hereof.
(n) Prior to or concurrently with the purchase and sale of the Shares
hereunder, the Company shall have completed the LYONs Offering and the Sub
Notes Offering.
(o) Except as is disclosed to the Underwriters in writing, the
representations and warranties of the Company, as applicable, and
Nationwide set forth in the Transaction Documents shall be true, accurate
and complete in all respects.
(p) Prior to the Closing Date, the Company shall have obtained the
determination of the Administrative Agent (as that term is defined in the
Credit Facility) pursuant to Section 6.11(g) of the Credit Facility that
the Sub Notes are substantially similar to the 10-1/8% Notes, the 9-3/4%
Notes and the 8-3/4% Notes.
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<PAGE>
(q) The Registrants shall not have failed on or prior to the
Closing Date to perform or comply with any of the agreements contained
herein.
The several obligations of the Underwriters to purchase any
Additional Shares hereunder is subject to the delivery to you on the
Applicable Closing Date of such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and
issuance of such Additional Shares and other matters relevant to the issuance
of such Additional Shares.
9. DEFAULTS. If on the Closing Date or any Option Closing Date,
as the case may be, any of the Underwriters shall fail or refuse to purchase
Firm Shares or Additional Shares, as the case may be, which it has agreed to
purchase hereunder on such date, and the aggregate amount of Firm Shares or
Additional Shares, as the case may be, that such defaulting Underwriter(s)
agreed but failed or refused to purchase does not exceed 10% of the total
number of Shares to be purchased on such date by all of the Underwriters,
each non-defaulting Underwriter shall be obligated severally, in the
proportion which the number of Firm Shares set forth opposite its name in
Schedule I hereto bears to the total number of Firm Shares which all the
non-defaulting Underwriters, as the case may be, have agreed to purchase, or
in such other proportion as you may specify, to purchase the Firm Shares or
Additional Shares, as the case may be, that such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase on
such date; PROVIDED that in no event shall the number of Firm Shares or
Additional Shares, as the case may be, that any Underwriter has agreed to
purchase pursuant to Section 3 hereof be increased pursuant to this Section 9
by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If, on the Closing Date or on the Option Closing Date, as the
case may be, any of the Underwriters shall fail or refuse to purchase the
Firm Shares or the Additional Shares, as the case may be, with respect to
which such default exceeds 10% of such total number of the Shares to be
purchased on such date by all Underwriter(s) and arrangements satisfactory to
the other Underwriter(s) and the Company for the purchase of such Shares are
not made within 48 hours after such default, this Agreement shall terminate
without liability on the part of the non-defaulting Underwriter(s) or the
Company, except as otherwise provided in this Section 9. In any such case
that does not result in termination of this Agreement, the Underwriters or
the Company may postpone the Closing Date or the Option Closing Date, as the
case may be, for not longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve a defaulting Underwriter from liability in
respect of any default by any such Underwriter under this Agreement.
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<PAGE>
10. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the later of (i) the execution and delivery of
this Agreement by the parties hereto, (ii) the effectiveness of the
Registration Statement, and (iii) if a post-effective amendment is required
to be filed pursuant to Rule 430A under the Act, the effectiveness of such
post-effective amendment.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change occurs
which, in the judgment of any Underwriter, make it impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares, (ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or the
financial markets of the United States or elsewhere, or any other substantial
national or international calamity or emergency if the effect of such
outbreak, escalation, calamity, crisis, change or emergency would, in the
judgment of any Underwriter, make it impracticable or inadvisable to market
the Shares on the terms and in the manner contemplated by the Prospectus,
(iii) any suspension or limitation of trading generally in securities on the
New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market
or in the over-the-counter markets or any setting of minimum prices for
trading on such exchanges or markets, (iv) any declaration of a general
banking moratorium by Federal, New York or Kentucky authorities, (v) the
taking of any action by any Federal, state or local government or agency in
respect of its monetary or fiscal affairs that in your judgment has a
material adverse effect on the financial markets in the United States, and
would, in your judgment, make it impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares, (vi) the
enactment, publication, decree, or other promulgation of any Federal or state
statute, regulation, rule or order of any court or other governmental
authority which, in your judgment, materially and adversely affects or will
materially and adversely affect the business or operations of the Company or
any Subsidiary, or (vii) any securities of the Company or any of the
Subsidiaries shall have been downgraded or placed on any "watch list" for
possible downgrading by any nationally recognized statistical rating
organization, PROVIDED, that in the case of such "watch list" placement,
termination shall be permitted only if such placement would, in the judgment
of any Underwriter, make it impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of the Shares or materially impair the
investment quality of the Shares.
The indemnities and contribution provisions and the other
agreements, representations and warranties of the Company, its officers and
directors and of the Underwriters set forth in or made pursuant to this
Agreement shall remain operative and
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<PAGE>
in full force and effect, and will survive delivery of and payment for the
Shares, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any of the Underwriters or by or on behalf
of the Company, the officers or directors of the Company or any controlling
person of the Company, (ii) acceptance of the Shares and payment for them
hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters pursuant to
clauses (i) or (vii) of the second paragraph of this Section 10 or because of
the failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
you for all out-of-pocket expenses (including the fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement,
the Company shall be liable for all expenses which it has agreed to pay pursuant
to Section 5(k) hereof.
11. NOTICES. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to it at
Jacor Communications, Inc., 50 East RiverCenter Boulevard, 12th Floor,
Covington, Kentucky 41011, Attention: Randy Michaels, Chief Executive
Officer, fax (606) 655-9345, with a copy to Graydon, Head & Ritchey, 1900
Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202, Attention:
Richard G. Schmalzl, Esq., and (b) if to any Underwriter, to Donaldson,
Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York, New York
10172 Attention: Syndicate Department, and, in each case, with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP at 300 South Grand Avenue, Suite
3400, Los Angeles, California 90071, Attention: Gregg A. Noel, Esq., or in
any case to such other address as the person to be notified may have
requested in writing.
12. SEVERABILITY. Any determination that any provision of this
Agreement may be, or is, unenforceable shall not affect the enforceability of
the remainder of this Agreement.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN
THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING
RELATED TO THIS AGREEMENT OR ANY OF THE
43
<PAGE>
MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT.
THE COMPANY, ON BEHALF OF ITSELF AND THE SUBSIDIARIES, IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
14. SUCCESSORS. Except as otherwise provided, this Agreement has
been and is made solely for the benefit of and shall be binding upon the
Company, the Underwriters, any Indemnified Person referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or
by virtue of this Agreement. The terms "successors and assigns" shall not
include a purchaser of any of the Shares from any of the Underwriters merely
because of such purchase.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in one or more counterpart, the executed
counterparts shall each be deemed to be an original, not all such
counterparts shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to effect the meaning
or interpretation of, this Agreement.
17. SURVIVAL. The indemnities and contribution provisions and the
other agreements, representations and warranties of the Company, its officers
and directors and of the Underwriter set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf
of the Underwriter or by or on behalf of the Company, the officers or
directors of the Company or any controlling person of the Company, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination
of this Agreement.
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<PAGE>
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the
foregoing correctly sets forth the agreement among the Company and you.
Very truly yours,
JACOR COMMUNICATIONS, INC.
By: /s/ R. Christopher Weber
------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President
and Chief Financial Officer
45
<PAGE>
JACOR COMMUNICATIONS COMPANY**;
BROADCAST FINANCE, INC.; CINE FILMS,
INC.; CINE GUARANTORS, INC.; CINE
GUARANTORS II, INC.; CINE GUARANTORS
II, LTD.; CINE MOBILE SYSTEMS INT'L.
N.V.; CINE MOVIL S.A. DE C.V.;
CITICASTERS CO.; GACC-N26LB, INC.;
GREAT AMERICAN MERCHANDISING GROUP,
INC.; GREAT AMERICAN TELEVISION
PRODUCTIONS, INC.; INMOBILIARIA
RADIAL, S.A. DE C.V.*; JACOR
BROADCASTING CORPORATION; JACOR
BROADCASTING OF ATLANTA, INC.; JACOR
BROADCASTING OF CHARLESTON, INC.;
JACOR BROADCASTING OF COLORADO, INC.;
JACOR BROADCASTING OF DENVER, INC.;
JACOR BROADCASTING OF FLORIDA, INC.;
JACOR BROADCASTING OF KANSAS CITY,
INC.; JACOR BROADCASTING OF LAS
VEGAS, INC.; JACOR BROADCASTING OF
LAS VEGAS II, INC.; JACOR
BROADCASTING OF LOUISVILLE, INC.;
JACOR BROADCASTING OF LOUISVILLE II,
INC.; JACOR BROADCASTING OF SALT LAKE
CITY, INC.; JACOR BROADCASTING OF
SALT LAKE CITY II, INC.; JACOR
BROADCASTING OF ST. LOUIS, INC.;
JACOR BROADCASTING OF SAN DIEGO,
INC.; JACOR BROADCASTING OF SARASOTA,
INC.; JACOR BROADCASTING OF TAMPA
BAY, INC.; JACOR BROADCASTING OF
TOLEDO, INC.; JACOR BROADCASTING OF
YOUNGSTOWN, INC.; JACOR CABLE, INC.;
JACOR LICENSEE OF
46
<PAGE>
CHARLESTON, INC.; JACOR LICENSEE OF
KANSAS CITY, INC., JACOR LICENSEE OF
LAS VEGAS, INC.; JACOR LICENSEE OF
LAS VEGAS II, INC.; JACOR LICENSEE OF
LOUISVILLE, INC.; JACOR LICENSEE OF
LOUISVILLE II, INC.; JACOR LICENSEE
OF SALT LAKE CITY, INC.; JACOR
LICENSEE OF SALT LAKE CITY II, INC.;
JACOR/PREMIERE HOLDING, INC.; JBSL,
INC.; LOCATION PRODUCTIONS, INC.;
LOCATION PRODUCTIONS II, INC.;
MULTIVERSE ACQUISITION CORP.;
***NOBLE BROADCAST CENTER, INC.;
NOBLE BROADCAST GROUP, INC.; NOBLE
BROADCAST HOLDINGS, INC.; NOBLE
BROADCAST LICENSES, INC.; NOBLE
BROADCAST OF SAN DIEGO, INC.; NOBRO,
S.C*.; NOVA MARKETING GROUP, INC.;
NSN NETWORK SERVICES, LTD.; PREMIERE
RADIO NETWORKS, INC.***; RADIO-ACTIVE
MEDIA, INC.; SPORTS RADIO
BROADCASTING, INC.; SPORTS RADIO,
INC.; THE SY FISCHER COMPANY AGENCY,
INC.;VTTV PRODUCTIONS; AND WHOK, INC.
By: /s/ R. Christopher Weber
-------------------------------
Name: R. Christopher Weber
Title: Senior Vice President
and Assistant Secretary for all
above companies except those
marked with an *, of which he is
Treasurer, those marked with
an **, of which he is Senior Vice
President, Chief Financial Officer
and Secretary, and those
marked with an ***, of which
he is Senior Vice President
47
<PAGE>
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN SACHS & CO.
MORGAN STANLEY & CO.
INCORPORATED
SMITH BARNEY INC.
Acting on behalf of themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Michael Hooks
---------------------------------
Name: Michael Hooks
Title: Managing Director
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SCHEDULE I
Number of
Shares to
Underwriters Be Purchased
- ------------ ------------
Donaldson, Lufkin & Jenrette Securities Corporation. . . . . 912,000
Goldman Sachs & Co.. . . . . . . . . . . . . . . . . . . . . 912,000
Morgan Stanley & Co. Incorporated. . . . . . . . . . . . . . 912,000
Salomon Smith Barney Inc.. . . . . . . . . . . . . . . . . . 912,000
Chase Securities Inc. . . . . . . . . . . . . . . . . . . . 152,000
CIBC Oppenheimer Corp. . . . . . . . . . . . . . . . . . . . 152,000
Dresdner Kleinwort Benson North America LLC . . . . . . . . 152,000
NationsBanc Montgomery Securities LLC . . . . . . . . . . . 152,000
Genesis Merchant Group Securities . . . . . . . . . . . . . 152,000
TD Securities (USA) Inc. . . . . . . . . . . . . . . . . . . 152,000
------------
Total.. . . . . . . . . . . . . . . . . . . . . . . . . 4,560,000
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EXHIBIT 3.1
BYLAWS OF
JACOR COMMUNICATIONS, INC.
(AS AMENDED THROUGH MAY 28, 1997)
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ARTICLE 1
STOCKHOLDERS
SECTION 1.1 ANNUAL MEETING. An annual meeting of the stockholders,
for the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen (13) months
of the last annual meeting of stockholders or, if no such meeting has been held,
the date of incorporation.
SECTION 1.2 SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose or purposes prescribed in the notice of the
meeting, may be called by one-third (1/3) of the directors then in office
(rounded up to the nearest whole number), by the chief executive officer, or by
stockholders holding at least ten percent (10%) of all issued and outstanding
stock entitled to vote at the meeting. A Special meeting may not be called by
any other person or persons. No business other than that described in the
notice of the special meeting may be transacted at a special meeting of
stockholders.
SECTION 1.3 PLACE OF MEETINGS. Annual and special meetings of
Stockholders shall be held at the principal office of the corporation in the
City of Cincinnati, Ohio, or at any other reasonably convenient location, either
within or without the State of Ohio, to be designated by the Board of Directors.
SECTION 1.4 NOTICE OF MEETINGS. Written notice of the place, date,
and time of all meetings of the stockholders shall be given, not less than ten
(10) nor more than sixty (60) days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by law (meaning, here and hereinafter, as required
from time to time by the Delaware General Corporation Law or the Certificate of
Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the adjourned meeting shall be given in conformity herewith.
At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
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SECTION 1.5 QUORUM. At any meeting of the stockholders, the
holders of a majority of all of the shares of the stock entitled to vote at the
meeting, present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number
may be required by law. Where a separate vote by a class or classes is
required, a majority of the shares of such class or classes present in person or
represented by proxy shall constitute a quorum entitled to take action with
respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another place,
date, or time.
SECTION 1.6 ORGANIZATION. Such person as the Board of Directors
may have designated or, in the absence of such a person, the chief executive
officer of the Corporation or, in his or her absence, such person as may be
chosen by the holders of a majority of the shares entitled to vote who are
present, in person or by proxy, shall call to order any meeting of the
stockholders and act as chairman of the meeting. In the absence of the
Secretary of the Corporation, the secretary of the meeting shall be such person
as the chairman appoints.
SECTION 1.7 CONDUCT OF BUSINESS. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him or her in order. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting shall be announced at the meeting.
SECTION 1.8 PROXIES AND VOTING. At any meeting of the
stockholders, every stockholder entitled to vote may vote in person or by proxy
authorized by an instrument in writing or by a transmission permitted by law
filed in accordance with the procedure established for the meeting. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this paragraph may be substituted or used in
lieu of the original writing or transmission for any and all purposes for which
the original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefore by a stockholder entitled to vote or by his or her proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots, each of
which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
The Corporation may, and to the extent required by law, shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting
and make a written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate is able to act at a meeting of stockholders, the
person presiding at the meeting may, and to the extent required by law, shall,
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his duties, shall take and
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sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability. Every vote taken by
ballots shall be counted by an inspector or inspectors appointed by the
chairman of the meeting.
All elections shall be determined by a plurality of the votes cast,
and except as otherwise required by law, all other matters shall be determined
by a majority of the votes cast affirmatively or negatively.
SECTION 1.9 STOCK LIST. A complete list of stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in his or her name, shall be open to the examination of any
such stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
SECTION 1.10 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action
required to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of the stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, or its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be made by hand or by certified or registered mail,
return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty (60) days of
the date of the earliest dated consent delivered to the Corporation, a written
consent or consents signed by a sufficient number of holders to take action are
delivered to the Corporation in the manner prescribed in the first paragraph of
this Section 1.10.
ARTICLE 2
BOARD OF DIRECTORS
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SECTION 2.1 NUMBER AND TERM OF OFFICE. The number of directors who
shall constitute the whole Board shall be such number as the Board of Directors
shall from time to time have designated, except that in the absence of any such
designation, such number shall be seven (7). Each director shall be elected for
a term of one year and until his or her successor is elected and qualified,
except as otherwise provided herein or required by law.
Whenever the authorized number of directors is increased between
annual meetings of the stockholders, a majority of the directors then in office
shall have the power to elect such new directors for the balance of a term and
until their successors are elected and qualified. Any decrease in the
authorized number of directors shall not become effective until the expiration
of the term of the directors then in office unless, at the time of such
decrease, there shall be vacancies on the board which are being eliminated by
the decrease.
SECTION 2.2 VACANCIES. If the office of any director becomes vacant
by reason of death, resignation, disqualification, removal or other cause, a
majority of the directors remaining in office, although less than a quorum, may
elect a successor for the unexpired term and until his or her successor is
elected and qualified. A resignation from the Board of Directors shall be
deemed to take effect upon its receipt by the Secretary unless some other
effective time is specified therein.
SECTION 2.3 REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such place or places, on such date or dates, and at
such time or times as shall have been established by the Board of Directors and
publicized among all directors. A notice of each regular meeting shall not be
required.
SECTION 2.4 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by two of the directors then in office or by the chief
executive officer and shall be held on such date, and at such time as they or he
or she shall fix. Notice of the place, date, and time of each such special
meeting shall be given each director by whom it is not waived by mailing written
notice not less than seven (7) days before the meeting or by telegraphing or
telexing or by facsimile transmission of the same not less than twenty-four (24)
hours before the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
SECTION 2.5 PLACE OF MEETINGS OF BOARD OF DIRECTORS. All meetings
of the Board of Directors shall be held at the principal office of the
corporation in the City of Cincinnati, Ohio, or at such other reasonably
convenient location, either within or without the State of Ohio, as the Board
may designate from time to time and as may be specified in the notice thereof.
SECTION 2.6 QUORUM. At any meeting of the Board of Directors, a
majority of the total number of the whole Board shall constitute a quorum for
all purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time, without further
notice or waiver thereof.
SECTION 2.7 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board of Directors, or of any committee thereof, may participate
in a meeting of such Board or
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committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other and such participation shall constitute presence in person at such
meeting.
SECTION 2.8 CONDUCT OF BUSINESS. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the vote
of a majority of the directors present, except as otherwise provided herein or
required by law. Action may be taken by the Board of Directors without a
meeting if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors.
SECTION 2.9 POWERS. The Board of Directors may, except as
otherwise required by law, exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, including, without
limiting the generality of the foregoing, the unqualified power:
2.9.1 To declare dividends from time to time in accordance with
law;
2.9.2 To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
2.9.3 To authorize the creation, making and issuance, in such form
as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to
do all things necessary in connection therewith;
2.9.4 To remove any officer of the Corporation with or without
cause, and from time to time to devolve the powers and
duties of any officer upon any other person for the time
being;
2.9.5 To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees
and agents;
2.9.6 To adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for directors,
officers, employees and agents of the Corporation and its
subsidiaries as it may determine;
2.9.7 To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers, employees and
agents of the Corporation and its subsidiaries as it may
determine; and,
2.9.8 To adopt from time to time regulations, not inconsistent
with these Bylaws, for the management of the Corporation's
business and affairs.
SECTION 2.10 COMPENSATION OF DIRECTORS. Directors, as such, may
receive, pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services
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as directors, including, without limitation, their services as members of
committees of the Board of Directors.
ARTICLE 3
COMMITTEES
SECTION 3.1 COMMITTEES OF THE BOARD OF DIRECTORS. The Board of
Directors, by a vote of a majority of the whole Board, may from time to time
designate committees of the Board, with such lawfully delegable powers and
duties as it thereby confers, to serve at the pleasure of the Board and
shall, for those committees and any others provided for herein, elect a
director or directors to serve as the member or members, designating, if it
desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. Any committee so
designated may exercise the power and authority of the Board of Directors to
declare a dividend, to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law if the resolution which designates the committee or a
supplemental resolution of the Board of Directors shall so provide. In the
absence or disqualification of any member of any committee and any alternate
member in his or her place, the member or members of the committee present at
the meeting and not disqualified from voting, whether or not he or she or
they constitute a quorum, may by unanimous vote appoint another member of the
Board of Directors to act at the meeting in the place of the absent or
disqualified member.
SECTION 3.2 CONDUCT OF BUSINESS. Each committee may determine
the procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third (1/3) of the members shall constitute a quorum unless the committee
shall consist of one (1) or two (2) members, in which event one (1) member
shall constitute a quorum; and all matters shall be determined by a majority
vote of the members present. Action may be taken by any committee without a
meeting if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of such committee.
ARTICLE 4
OFFICERS
SECTION 4.1 GENERALLY. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a President,
one or more Vice Presidents, a Secretary, a Treasurer and such other officers
as may from time to time be appointed by the Board of Directors. Officers
shall be elected by the Board of Directors, which shall consider that subject
at its first meeting held on or after every annual meeting of stockholders.
Each officer shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. Any number of
offices may be held by the same person.
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SECTION 4.2 CHAIRMAN OF THE BOARD. The Chairman of the Board, if
one be elected, shall preside at all meetings of the Board of Directors and
shall have such other powers and duties as may be prescribed by the Board of
Directors.
SECTION 4.3 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer,
subject to the provisions of these Bylaws and to the direction of the Board of
Directors, shall have the responsibility for the general management and control
of the business and affairs of the Corporation and shall perform all duties and
have all powers which are commonly incident to the office of chief executive or
which are delegated to him or her by the Board of Directors and shall see that
all orders and resolutions of the Board of Directors are carried into effect.
The Chief Executive Officer shall have the power to sign all stock certificates,
contracts and other instruments of the Corporation which are authorized, except
where required by law to be otherwise signed or executed, and shall have general
supervision and direction of all of the other officers, employees and agents of
the Corporation.
SECTION 4.4 PRESIDENT. Unless otherwise specified by the Board of
Directors, the President shall be the chief operating officer of the
Corporation. Subject to the provisions of these Bylaws and to the direction of
the Board of Directors, he or she shall perform all duties and have all powers
which are commonly incident to the office of chief operating officer or which
are delegated to him or her by the Board of Directors. He or she shall have
power to sign all stock certificates, contracts and other instruments of the
Corporation which are authorized, except where required by law to be otherwise
signed or executed.
SECTION 4.5 VICE PRESIDENT. Each Vice President shall have such
powers and duties as may be delegated to him or her by the Board of Directors.
One (1) Vice President shall be designated by the Board to perform the duties
and exercise the powers of the President in the event of the President's absence
or disability.
SECTION 4.6 TREASURER. The Treasurer shall have the responsibility
for maintaining the financial records of the Corporation. He or she shall make
such disbursements of the funds of the Corporation as are authorized and shall
render from time to time an account of all such transactions and of the
financial condition of the Corporation. The Treasurer shall also perform such
other duties as the Board of Directors may from time to time prescribe.
SECTION 4.7 SECRETARY. The Secretary shall issue all authorized
notices for, and shall keep minutes of, all meetings of the stockholders and the
Board of Directors. He or she shall have charge of the corporate books and
shall perform such other duties as the Board of Directors may from time to time
prescribe.
SECTION 4.8 DELEGATION OF AUTHORITY. The Board of Directors may
from time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding any provision hereof.
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SECTION 4.9 REMOVAL. Any officer of the Corporation may be removed
at any time, with or without cause, by the Board of Directors.
SECTION 4.10 ACTION WITH RESPECT TO SECURITIES OF OTHER
CORPORATIONS. Unless otherwise directed by the Board of Directors, the
President or any officer of the Corporation authorized by the President shall
have power to vote and otherwise act on behalf of the Corporation, in person or
by proxy, at any meeting of stockholders of or with respect to any action of
stockholders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE 5
STOCK
SECTION 5.1 CERTIFICATES OF STOCK. Each stockholder shall be
entitled to a certificate signed by, or in the name of the Corporation by, the
Chief Executive Officer, the President or a Vice President, and by the Secretary
or an Assistant Secretary, or the Treasurer or an Assistant Treasurer,
certifying the number of shares owned by him or her. Any or all of the
signatures on the certificate may be by facsimile.
SECTION 5.2 TRANSFERS OF STOCK. Transfers of stock shall be made
only upon the transfer books of the Corporation kept at an office of the
Corporation or by transfer agents designated to transfer shares of the stock of
the Corporation. Except where a certificate is issued in accordance with
Section 5.4 of these Bylaws, an outstanding certificate for the number of shares
involved shall be surrendered for cancellation before a new certificate is
issued therefor.
SECTION 5.3 RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders, or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for such other action as hereinbefore described; provided,
however, that if no record date for determining stockholders shall be at the
close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held, and, for determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of rights or
to exercise any rights of change, conversion or exchange of stock or for any
other purpose, the record date shall be at the close of business on the day on
which the Board of Directors adopts a resolution relating thereto.
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A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than ten (10) days after the date upon which
the resolution fixing the record date is adopted. If no record date has been
fixed by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, the record date shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner prescribed by
Section 1.10 hereof. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by the Delaware General
Corporation Law with respect to the proposed action by written consent of the
stockholders, the record date for determining stockholders entitled to consent
to corporate action in writing shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action.
SECTION 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event
of the loss, theft or destruction of any certificate of stock, another may be
issued in its place pursuant to such regulations as the Board of Directors may
establish concerning proof of such loss, theft or destruction and concerning the
giving of a satisfactory bond or bonds of indemnity.
SECTION 5.5 REGULATIONS. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE 6
NOTICES
SECTION 6.1 NOTICES. Except as otherwise specifically provided
herein or required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by
pre-paid telegram or mailgram. Any such notice shall be addressed to such
stockholder, director, office, employee or agent at his or her last known
address as the same appears on the books of the Corporation. The time when such
notice is received, if hand delivered, or dispatched, if delivered through the
mails or by telegram or mailgram, shall be the time of the giving of the notice.
SECTION 6.2 WAIVERS. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder,
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director, officer, employee or agent. Neither the business nor the purpose
of any meeting need be specified in such a waiver.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 FACSIMILE SIGNATURES. In addition to the provisions
for use of facsimile signatures elsewhere specifically authorized in these
Bylaws, facsimile signatures of any officer or officers of the Corporation may
be used whenever and as authorized by the Board of Directors or a committee
thereof.
SECTION 7.2 CORPORATE SEAL. The Board of Directors may, but need
not, provide a suitable seal, containing the name of the Corporation, which seal
shall be in the charge of the Secretary. If and when so directed by the Board
of Directors or a committee thereof, duplicates of the seal may be kept and used
by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
SECTION 7.3 RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each
director, each member of any committee designated by the Board of Directors, and
each officer of the Corporation shall, in the performance of his or her duties,
be fully protected in relying in good faith upon the books of account or other
records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or employees or
committees of the Board of Directors so designated, or by any other person as to
matters which such director or committee member reasonably believes are within
such other person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
SECTION 7.4 FISCAL YEAR. The fiscal year of the Corporation shall
be as fixed by the Board of Directors.
SECTION 7.5 TIME PERIODS. In applying any provision of these Bylaws
which requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded, and the day of the event shall be included.
ARTICLE 8
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 8.1 RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or an officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee
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benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may here-after be amended (but, in the
case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith; provided,
however, that, except as provided in Section 8.3 with respect to proceedings
to enforce rights to indemnification, the Corporation shall indemnify any
such indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation.
SECTION 8.2 RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in Section 8.1 shall include the right to be paid by
the Corporation the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is not
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 8.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Section 8.1 and Section 8.2 of this ARTICLE 8 shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
SECTION 8.3 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under
Section 8.1 or 8.2 of this ARTICLE 8 is not paid in full by the Corporation
within sixty (60) days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty (20) days, the indemnitee may
at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of expenses pursuant
to the terms of an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also to the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by
the indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure
11
<PAGE>
of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has not
met such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any
suit brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified, or
to such advancement of expenses, under this ARTICLE 8 or otherwise shall be
on the Corporation.
SECTION 8.4 NON-EXCLUSIVITY OF RIGHTS; HEIRS. The right to
indemnification and to the advancement of expenses conferred in this ARTICLE 8
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporation's Certificate of Incorporation,
Bylaws, agreement, vote of stockholder or disinterested directors or otherwise,
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
SECTION 8.5 INSURANCE. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 8.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this ARTICLE 8 with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE 9
AMENDMENTS
These Bylaws may be amended or repealed by the Board of Directors at
any meeting or by the stockholders at any meeting.
12
<PAGE>
EXHIBIT 5.1
GRAYDON, HEAD & RITCHEY
1900 FIFTH THIRD CENTER
CINCINNATI, OHIO 45202
February 3, 1998
Jacor Communications, Inc.
50 East RiverCenter Boulevard
12th Floor
Covington, KY 41011
Re: Issuance of Jacor Communications Company 8% Senior Subordinated
Notes due 2010 in the aggregate of $120,000,000 (the "Notes"), which
Notes are irrevocably and unconditionally guaranteed by Jacor
Communications, Inc. and the Subsidiaries Pursuant to Registration
Statement on Form S-3 (File No. 333-40127) Filed with the Securities
and Exchange Commission
Gentlemen:
We have acted as counsel to Jacor Communications, Inc., a Delaware
corporation (the "Company"), Jacor Communications Company, the Company's
wholly-owned subsidiary ("JCC") and each of JCC's subsidiaries listed on
Schedule A hereto (the "Subsidiaries"), in connection with the issuance of
the Notes, which Notes are irrevocably and unconditionally guaranteed by the
Company and the Subsidiaries pursuant to the public offerings of such Notes,
as set forth in the Registration Statement on Form S-3 (File No. 333-40127),
as amended (the "Registration Statement"), filed by the Company, JCC and the
Subsidiaries with the Securities and Exchange Commission.
As counsel for the Company, JCC and each of the Subsidiaries we have made
such legal and factual examinations and inquiries as we deem advisable for the
purpose of rendering this opinion. In addition, we have examined such documents
and materials, including the Articles of Incorporation, Certificates of
Incorporation, By-laws, and other corporate records of the Company, JCC and each
of the Subsidiaries, as we have deemed necessary for the purpose of this
opinion.
<PAGE>
Jacor Communications, Inc.
Page 2
February 3, 1998
On the basis of the foregoing, we express the following opinions:
(i) the Notes, when authenticated in accordance with the terms of the
indenture (the "Indenture") to be entered into among JCC, the Company, the
Subsidiary Guarantors and The Bank of New York, as trustee, a copy of which is
filed as an exhibit to the Registration Statement, and delivered and paid for as
contemplated by the Registration Statement, will constitute a valid and binding
obligation of JCC, enforceable against JCC in accordance with its terms and
entitled to the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity) and except to the extent that a waiver of rights under any usury laws
may be unenforceable; and
(ii) the Guarantees, when issued by the Company and the Subsidiary
Guarantors upon the authentication and delivery of the Notes, will constitute a
valid and binding obligation of the Company and the Subsidiary Guarantors,
enforceable against the Company and the Subsidiary Guarantors in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity) and except to
the extent that a waiver of rights under any usury laws may be unenforceable.
We hereby consent to the filing of this opinion as part of the
above-referenced Registration Statement and amendments thereto and to the
reference to our firm in the related Prospectus Supplement dated February 3,
1998 under the caption "Legal Matters."
Very truly yours,
GRAYDON, HEAD & RITCHEY
By: /s/ Richard G. Schmalzl
-------------------------------------
Richard G. Schmalzl, Partner
<PAGE>
SCHEDULE A
JACOR SUBSIDIARIES
BROADCAST FINANCE, INC., an Ohio corporation
CINE FILMS, INC., a California corporation
CINE GUARANTORS, INC., a California corporation
CINE GUARANTORS II, INC., a California corporation
CINE GUARANTORS II, LTD., a Canadian corporation
CINE MOBILE SYSTEMS INT'L. N.V., a Antille corporation
CINE MOVIL S.A. de C.V., a Mexican corporation
CITICASTERS CO., an Ohio corporation
GACC-N26LB, INC., a Delaware corporation
GREAT AMERICAN MERCHANDISING GROUP, INC., a New York corporation
GREAT AMERICAN TELEVISION PRODUCTIONS, INC., a California corporation
INMOBILIARIA RADIAL, S.A. de C.V., a Mexican corporation
JACOR BROADCASTING CORPORATION, an Ohio corporation
JACOR BROADCASTING OF ATLANTA, INC., a Georgia corporation
JACOR BROADCASTING OF CHARLESTON, INC., a Delaware corporation
JACOR BROADCASTING OF COLORADO, INC., a Colorado corporation
JACOR BROADCASTING OF DENVER, INC., a California corporation
JACOR BROADCASTING OF FLORIDA, INC., a Florida corporation
JACOR BROADCASTING OF KANSAS CITY, INC., a Delaware corporation
JACOR BROADCASTING OF LAS VEGAS, INC., a Delaware corporation
<PAGE>
JACOR BROADCASTING OF LAS VEGAS II, INC., a Delaware corporation
JACOR BROADCASTING OF LOUISVILLE, INC., a Delaware corporation
JACOR BROADCASTING OF LOUISVILLE II, INC., a Delaware corporation
JACOR BROADCASTING OF SALT LAKE CITY, INC., a Delaware corporation
JACOR BROADCASTING OF SALT LAKE CITY II, INC., a Delaware corporation
JACOR BROADCASTING OF SAN DIEGO, INC., a Delaware corporation
JACOR BROADCASTING OF SARASOTA, INC., a Florida corporation
JACOR BROADCASTING OF ST. LOUIS, INC., a Delaware corporation
JACOR BROADCASTING OF TAMPA BAY, INC., a Florida corporation
JACOR BROADCASTING OF TOLEDO, INC., a California corporation
JACOR BROADCASTING OF YOUNGSTOWN, INC., an Ohio corporation
JACOR CABLE, INC., a Kentucky corporation
JACOR LICENSEE OF CHARLESTON, INC., a Delaware corporation
JACOR LICENSEE OF KANSAS CITY, INC., a Delaware corporation
JACOR LICENSEE OF LAS VEGAS, INC., a Delaware corporation
JACOR LICENSEE OF LAS VEGAS II, INC., a Delaware corporation
JACOR LICENSEE OF LOUISVILLE, INC., a Delaware corporation
JACOR LICENSEE OF LOUISVILLE II, INC., a Delaware corporation
JACOR LICENSEE OF SALT LAKE CITY, INC., a Delaware corporation
JACOR LICENSEE OF SALT LAKE CITY II, INC., a Delaware corporation
JACOR/PREMIERE HOLDING, INC., a Delaware corporation
JBSL, INC., a Missouri corporation
LOCATION PRODUCTIONS, INC., a California corporation
LOCATION PRODUCTIONS II, INC., a California corporation
MULTIVERSE ACQUISITION CORP., a Delaware corporation
NOBLE BROADCAST CENTER, INC., a California corporation
NOBLE BROADCAST GROUP, INC., a Delaware corporation
NOBLE BROADCAST HOLDINGS, INC., a Delaware corporation
NOBLE BROADCAST LICENSES, INC., a California corporation
NOBLE BROADCAST OF SAN DIEGO, INC., a California corporation
NOBRO, S.C., a Mexican corporation
NOVA MARKETING GROUP, INC., a California corporation
NSN NETWORK SERVICES, LTD., a Delaware corporation
PREMIERE RADIO NETWORKS, INC., a Delaware corporation
RADIO- ACTIVE MEDIA, INC., a Delaware corporation
SPORTS RADIO BROADCASTING, INC., a California corporation
SPORTS RADIO, INC., a California corporation
THE SY FISCHER COMPANY AGENCY, INC., a California corporation
VTTV PRODUCTIONS, a California corporation
WHOK, INC., an Ohio corporation
<PAGE>
EXHIBIT 5.2
GRAYDON, HEAD & RITCHEY
1900 FIFTH THIRD CENTER
CINCINNATI, OHIO 45202
February 3, 1998
Jacor Communications, Inc.
50 East RiverCenter Boulevard
12th Floor
Covington, KY 41011
Re: Issuance of $383,573,000 Aggregate Principal Amount at
Maturity of Liquid Yield Option Notes due 2018 (the "LYONs") of Jacor
Communications, Inc. with gross proceeds of $150,000,000 Pursuant to
Registration Statement on Form S-3 (File No. 333-40127) Filed with the
Securities and Exchange Commission
Gentlemen:
We have acted as counsel to Jacor Communications, Inc., a Delaware
corporation ("Company"), in connection with the issuance by the Company of the
LYONs pursuant to the public offerings of such LYONs, and the underlying shares
of the Company's common stock, no par value, as may be required for issuance
upon conversion of the LYONs (the "Conversion Shares), as set forth in the
Registration Statement on Form S-3 (File No. 333-40127), as amended (the
"Registration Statement"), filed by the Company with the Securities and Exchange
Commission.
As counsel for the Company we have made such legal and factual examinations
and inquiries as we deem advisable for the purpose of rendering this opinion.
In addition, we have examined such documents and materials, including the
Certificate of Incorporation, as amended, By-laws, as amended, and other
corporate records of the Company, as we have deemed necessary for the purpose of
this opinion.
On the basis of the foregoing, we express the following opinions:
<PAGE>
Jacor Communications, Inc.
Page 2
February 3, 1998
(i) the LYONs, when authenticated in accordance with the terms of the
indenture (the "Indenture") to be entered into between the Company and the Bank
of New York, as trustee, a copy of which is filed as an exhibit to the
Registration Statement, , and delivered and paid for as contemplated by the
Registration Statement, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms and
entitled to the benefits of the indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditor's rights and remedies generally and to the general principles
if equity (regardless of whether enforcement is sought in a proceeding at law or
in equity) and except to the extent that a waiver of rights under any usury laws
may be unenforceable.
(ii) the Conversion Shares initially issuable upon conversion of the LYONs
have been duly authorized and reserved for issuance upon conversion of the
LYONs, are free of preemptive rights, and, when issued upon conversion of the
LYONs in accordance with the terms of the Indenture, will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as part of the
above-referenced Registration Statement and amendments thereto and to the
reference to our firm in the related Prospectus Supplement dated February 3,
1998 under the caption "Legal Matters."
Very truly yours,
GRAYDON, HEAD & RITCHEY
By: /s/ Richard G. Schmalzl
----------------------------------
Richard G. Schmalzl, Partner
<PAGE>
EXHIBIT 5.3
GRAYDON, HEAD & RITCHEY
1900 FIFTH THIRD CENTER
CINCINNATI, OHIO 45202
February 3, 1998
Jacor Communications, Inc.
50 East RiverCenter Boulevard
12th Floor
Covington, KY 41011
Re: Issuance of 4,560,000 Shares of Common Stock of Jacor
Communications, Inc. Pursuant to Registration Statement on Form S-3
(File No. 333-40127) Filed with the Securities and Exchange Commission
Gentlemen:
We have acted as counsel to Jacor Communications, Inc., a Delaware
corporation ("Company"), in connection with the issuance of 4,560,000 shares
of common stock, par value $.01 per share (the "Common Stock") pursuant to the
public offerings of such shares, as set forth in the Registration Statement on
Form S-3 (File Nos. 333-40127), as amended (the "Registration Statement"), filed
by the Company with the Securities and Exchange Commission.
As counsel for the Company we have made such legal and factual examinations
and inquiries as we deem advisable for the purpose of rendering this opinion.
In addition, we have examined such documents and materials, including the
Certificate of Incorporation, as amended, By-laws, as amended, and other
corporate records of the Company, as we have deemed necessary for the purpose of
this opinion.
On the basis of the foregoing, we express the opinion that the
4,560,000 shares of Common Stock of the Company registered for issuance
pursuant to the Registration Statements have been duly authorized for issuance
and sale as contemplated by the Registration Statements, are free of preemptive
rights and, when issued and delivered by the Company as contemplated by the
<PAGE>
Jacor Communications, Inc.
Page 2
February 3, 1998
Registration Statements against payment of the consideration set forth
therein, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as part of the
above-referenced Registration Statement and amendments thereto and to the
reference to our firm in the related Prospectus Supplement dated February 3,
1998 under the caption "Legal Matters."
Very truly yours,
GRAYDON, HEAD & RITCHEY
By: /s/ Richard G. Schmalzl
--------------------------------
Richard G. Schmalzl, Partner
<PAGE>
EXHIBIT 8.1
GRAYDON, HEAD & RITCHEY
1900 FIFTH THIRD CENTER
CINCINNATI, OHIO 45202
February 3, 1998
Jacor Communications, Inc.
50 E. RiverCenter Blvd.
12th Floor
Covington, KY 41011
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We are acting as your counsel in connection with the registration under
the Securities Act of 1933, as amended, of $383,573,000 aggregate principal
amount at maturity of Liquid Yield Option-TM- Notes due 2018 (the "LYONS") of
Jacor Communications, Inc. (the "Company") with gross proceeds to Jacor of
$150,000,000. In that capacity, we have examined the Registration Statement
on Form S-3 (the "Registration Statement") filed by the Company with the
Securities and Exchange Commission in connection with the proposed public
offering of the LYONS.
We hereby confirm our opinion set forth in the Prospectus Supplement dated
February 3, 1998 in the second full paragraph under the caption "Certain United
States Federal Income Tax Considerations." Furthermore, we are of the opinion
that the section in such Prospectus Supplement under the caption "Certain United
States Federal Income Tax Considerations," while not purporting to discuss all
tax matters relating to the LYONS, sets forth the material federal income tax
consequences of the LYONS, subject to the qualifications set forth therein.
The foregoing is based on the Internal Revenue Code of 1986, as amended
(the "Code"), Treasury Regulations (including proposed Treasury Regulations)
promulgated thereunder, rulings, official pronouncements and judicial decisions,
all as in effect on the date hereof and all of which are subject to change or
different interpretations by the Internal Revenue Service or the courts.
<PAGE>
Jacor Communications, Inc.
February 3, 1998
Page 2
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the references to this firm in the Prospectus Supplement which
forms a part thereof.
Very truly yours,
GRAYDON, HEAD & RITCHEY
By: /s/ Henry G. Alexander, Jr
-----------------------------
Henry G. Alexander, Jr.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus
Supplements to the Registration Statement of Jacor Communications, Inc.,
Jacor Communications Company and Subsidiary Guarantors on Form S-3 (File No.
333-40127) of our report dated February 27, 1997 on our audits of the
consolidated financial statements of Jacor Communications, Inc. as of
December 31, 1996 and 1995 and for each of the three years in the period
ended December 31, 1996, which report is included in Jacor Communications,
Inc.'s Annual Report on Form 10-K; of our report dated February 28, 1997, on
our audits of the combined financial statements of EFM Media Management,
Inc., EFM Publishing, Inc., and PAM Media, Inc. as of December 31, 1995 and
1996 and for each of the three years in the period ended December 31, 1996,
which report is included in Jacor Communications, Inc.'s Current Report on
Form 8-K dated March 21, 1997, as amended on March 26, 1997; of our report
dated November 7, 1997 on our audits of the financial statements of Archon
Communications, Inc. as of December 31, 1996 and March 31, 1997 and for the
period July 6, 1997 (Date of Inception) to December 31, 1995, the year ended
December 31, 1996 and the three months ended March 31, 1997, which report is
included in Jacor Communications, Inc.'s Current Report on Form 8-K dated
November 21, 1997; and of our report dated November 14, 1997 on our audits of
the combined balance sheet of Synergy Broadcast Investment Enterprises,
L.L.C., Worldstar, Inc. and MultiVerse Networks, L.L.C. as of September 28,
1997 and the combined balance sheets of Shanahan Broadcasting, Inc.,
Worldstar, Inc. and MultiVerse Networks, L.L.C. as of December 29, 1996 and
December 31, 1995, and the related combined statements of income,
shareholders' equity and cash flows for the nine month period ending
September 28, 1997, the year ended December 29, 1996 and the ten months ended
December 31, 1995, which report is included in Jacor Communications, Inc.'s
Current Report on Form 8-K dated November 21, 1997. We also consent to the
reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Cincinnati, Ohio
January 30, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Prospectus Supplements dated February 3, 1998 to the Prospectus contained
in the Registration Statement (Form S-3 No. 333-40127) of Jacor Communications,
Inc., Jacor Communications Company and the Subsidiary Guarantors and to the
incorporation by reference therein of our report dated February 21, 1997,
with respect to the consolidated financial statements of Premiere Radio
Networks, Inc. included in Jacor Communications, Inc.'s Current Report on
Form 8-K(A) dated April 7, 1997.
ERNST & YOUNG LLP
Los Angeles, California
January 30, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" and
to the use of our report dated September 18, 1997, with respect to the
financial statements of Jacor Broadcasting of Youngstown, Inc. (formerly WN
Broadcasting Corp.) incorporated by reference in the Prospectus Supplements
to the Registration Statement on Form S-3 (File No. 333-40127) and related
Prospectus of Jacor Communications Company, Jacor Communications, Inc. and
Subsidiary Guarantors.
WILLIAM T. OGDEN, INC.
Youngstown, Ohio
February 3, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Prospectus Supplements
to the Prospectus contained in the registration statement (No. 333-40127) on
Form S-3 of Jacor Communications, Inc., Jacor Communications Company and the
Subsidiary Guarantors of our report dated January 4, 1998, with respect to the
combined balance sheets of Nationwide Communications as of September 30, 1997
and December 31, 1996, and the related combined statements of earnings,
shareholder's equity, and cash flows for the nine month period ended September
30, 1997 and each of the years in the two year period ended December 31, 1996,
which report appears in the Form 8-K of Jacor Communications, Inc. dated January
5, 1998, as amended.
In addition, we consent to the reference to our firm under the heading
"Experts" in the Prospectus Supplements to the Prospectus contained in the
registration statement (No. 333-40127) on Form S-3 of Jacor Communications,
Inc., Jacor Communications Company and the Subsidiary Guarantors.
KPMG Peat Marwick LLP
Columbus, Ohio
February 3, 1998
<PAGE>
EXHIBIT 99.1
JACOR TO OFFER COMMON STOCK, SENIOR SUBORDINATED NOTES
AND LIQUID YIELD OPTION NOTES
COVINGTON, KY, JANUARY 21, 1998: Jacor Communications, Inc. (Nasdaq: JCOR) and
its wholly owned subsidiary, Jacor Communications Company, today announced they
will offer for sale approximately $495 million of securities in three concurrent
offerings. The offerings will be made pursuant to Jacor's omnibus shelf
registration statement previously declared effective by the Securities and
Exchange Commission. The offerings are:
1. COMMON STOCK: Jacor Communications, Inc. will offer to sell approximately
3.8 million shares of common stock to the public. The number of shares to
be offered and the final offering price will be determined by market
conditions at the time of sale. Net proceeds to the company are expected
to be approximately $200 million. The underwriters have an over-allotment
option to purchase up to an additional 15% of the number of shares offered.
2. SENIOR SUBORDINATED NOTES: Jacor Communications Company will offer to sell
$100 million in aggregate principal amount of 12 year fixed rate notes.
The notes will be guaranteed by Jacor Communications, Inc. and by Jacor
subsidiaries. Market conditions at the time of the offering will determine
the exact coupon, term and other provisions of the security.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION WILL ACT AS LEAD
UNDERWRITER IN THE PRECEDING OFFERINGS.
3. LIQUID YIELD OPTION NOTES (LYONS): Jacor Communications, Inc. will offer to
sell 20-year liquid yield notes with expected gross proceeds of $150
million. The LYONs are zero coupon senior notes and are convertible into
Jacor common stock. The yield, conversion premium, call provisions and
other terms of the security will be determined by market conditions at the
time of the offering. The underwriter has a 10% over-allotment option on
the LYONs.
MERRILL LYNCH WILL ACT AS SOLE UNDERWRITER IN THE LYONS OFFERING.
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO SELL NOR A SOLICITATION OF AN OFFER TO
BUY SUCH SECURITIES. THE OFFERING IS MADE BY PROSPECTUS ONLY. COPIES OF THE
FINAL PROSPECTUS WILL BE AVAILABLE THROUGH THE PROSPECTUS DEPARTMENTS OF
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION, 277 PARK AVENUE, NEW YORK,
NY, 10172, TEL. 212.892.3000 FOR THE SENIOR SUBORDINATED NOTES AND COMMON STOCK.
THE PROSPECTUS FOR THE LIQUID YIELD OPTION NOTES (LYONS) WILL BE AVAILABLE
THROUGH THE MERRILL LYNCH PROSPECTUS OPERATIONS, TEL. 732.885.7260.
<PAGE>
JACOR AGREES TO SELL COMMON STOCK, SENIOR SUBORDINATED
NOTES AND LIQUID YIELD OPTION NOTES
COVINGTON, KY, FEBRUARY 4, 1998: Jacor Communications, Inc. (Nasdaq: JCOR)
and its wholly owned subsidiary, Jacor Communications Company, announced
today their agreement to sell securities in three separate offerings made on
Tuesday, February 3, 1998. The aggregate gross proceeds from these three
offerings will be approximately $500.0 million and were made pursuant to
Jacor's omnibus shelf registration statement previously declared effective by
the Securities and Exchange Commission. The offerings are:
1. COMMON STOCK: Jacor Communications, Inc. agreed to sell 4.56 million
shares of its common stock to the public at $50.50 per share, for gross
proceeds of approximately $230.3 million. Net proceeds to the company are
anticipated to be approximately $221.0 million. The underwriters have an
over-allotment option to purchase up to an additional 513,000 shares of
common stock at $50.50 per share.
2. SENIOR SUBORDINATED NOTES: Jacor Communications Company agreed to sell
$120.0 million in aggregate principal amount at maturity of 8% Senior
Subordinated Notes due 2010 to the public, for gross proceeds of
approximately $119.5 million. The notes were priced to yield 8.05% with a
coupon of 8.0% and are callable after five years. The notes will be
guaranteed by Jacor Communications, Inc. and by all of Jacor's
subsidiaries. Net proceeds to the company are anticipated to be
approximately $117.1 million.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION ACTED AS
LEAD UNDERWRITER IN THE PRECEDING OFFERINGS.
3. LIQUID YIELD OPTION NOTES (LYONs): Jacor Communications, Inc. agreed to
sell $383.6 million in aggregate principal amount at maturity of its
Liquid Yield Option Notes due 2018 (Zero Coupon-Senior) (the "LYONs") to
the public, for gross proceeds of $150.0 million. The yield to maturity
of the LYONs is 4.75% per annum and each LYON is convertible, at the
option of the holder at any time on or prior to maturity, into 6.245
shares of common stock of Jacor Communications, Inc. The LYONs have been
approved for listing, subject to official notice of issuance, on the
Nasdaq Stock Market's SmallCap Market under the symbol "JCORH". Net
proceeds to the company are anticipated to be approximately $145.5
million. The underwriter has an over-allotment option to purchase up to
an additional $43.34 million in aggregate principal amount at maturity of
LYONs for additional potential gross proceeds of approximately $16.95
million.
MERRILL LYNCH & CO. ACTED AS SOLE UNDERWRITER IN THE LYONs OFFERING.
All three offerings are schedule to close on Monday, February 9.
<PAGE>
THE OFFERINGS ARE MADE BY PROSPECTUS ONLY. COPIES OF THE FINAL PROSPECTUS
FOR THE COMMON STOCK AND THE 8% SENIOR SUBORDINATED NOTES DUE 2010 ARE
AVAILABLE THROUGH THE PROSPECTUS DEPARTMENT OF DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION, 277 PARK AVENUE, NEW YORK, NY, 10172, TEL.
212.892.3000. THE PROSPECTUS FOR THE LIQUID YIELD OPTION NOTES DUE 2018
(LYONs) IS AVAILABLE THROUGH MERRILL LYNCH & CO., PROSPECTUS OPERATIONS, TEL.
732.885.7260.
