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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
Multi-Market Radio, Inc.
(Name of Issuer)
Class A Common Stock, $.01 par value
(Title of Class of Securities)
625432109
(CUSIP Number)
Lawrence G. Goodman, Esq.
Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue
New York, New York 10022
(212) 758-9500
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 26, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 625432109 Page 2 of __ Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GABRIEL CAPITAL, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 122,722
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
10 SHARED DISPOSITIVE POWER
122,722
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
122,722
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.8%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
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SCHEDULE 13D
CUSIP No. 625432109 Page 3 of ___ Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ARIEL FUND LIMITED
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CAYMAN ISLANDS
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 181,002
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 10 SHARED DISPOSITIVE POWER
181,002
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
181,002
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.6%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
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SCHEDULE 13D
CUSIP No. 625432109 Page 4 of __ Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J. EZRA MERKIN
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
7 SOLE VOTING POWER
20,076
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 303,724
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 20,076
PERSON
WITH 10 SHARED DISPOSITIVE POWER
303,724
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
323,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
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SCHEDULE 13D
This Amendment No. 3 amends and supplements the following
Items of the Reporting Persons' Statement on Schedule 13D (the "Schedule") with
regard to Class A Common Stock of Multi-Market Radio, Inc.
Item 4. Purpose of Transaction
Gabriel and Ariel Fund entered into an agreement with SFX
Broadcasting, Inc. ("SFX"), dated as of July 26, 1996, pursuant to which Gabriel
and Ariel Fund agreed to vote securities of the Issuer owned by them (i) in
favor of the proposed merger of the Issuer with a subsidiary of SFX (the
"Merger") and the Merger Agreement related thereto, as such Merger Agreement may
be amended; provided, however, with respect to any such amendment, (a) such
amendment is approved by the independent committee of the Issuer, (b) an opinion
is obtained from Oppenheimer & Co., Inc. substantially to the effect that the
consideration to be paid to the holders of Class A Common Stock (other than
certain persons) is fair from a financial point of view and (c) the
consideration to be paid in the Merger to the holders of Class A Common Stock is
not less than $12.00 per share and the transaction is structured as a tax free
reorganization, (ii) in favor of the transactions contemplated by the Merger
Agreement and (iii) against competing transactions or proposals. Such agreement
terminates (1) upon termination of the Merger Agreement, (2) December 31, 1996
or (3) if the consideration to be paid in the Merger to the holders of Class A
Common Stock is less than $12.00 per share.
Reference is made to Exhibit 1 hereto which is incorporated
herein by reference.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
See Item 2.
Item 7. Materials to be Filed as Exhibits
1. Agreement dated as of July 26, 1996 among SFX
Broadcasting, Inc., Gabriel Capital, L.P. and Ariel Fund Limited.
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Signatures
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
GABRIEL CAPITAL, L.P.
By: /s/ J. Ezra Merkin
Name: J. Ezra Merkin
Title: General Partner
ARIEL FUND LIMITED
By: MEESPIERSON MANAGEMENT
(CAYMAN) LIMITED
By: /s/ Peter A. De Ruitjer, Martin Byrne
Name: Peter A. De Ruitjer, Martin Byrne
Title: Director, Assistant Secretary
/s/ J. Ezra Merkin
J. EZRA MERKIN
Dated: July 29, 1996
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AGREEMENT
THIS AGREEMENT, dated as of July_, 1996, is between SFX
BROADCASTING, INC., a Delaware corporation ("SFX"), and GABRIEL CAPITAL,
L.P. and ARIEL FUND LIMITED (collectively, the "Stockholders").
WHEREAS, concurrently herewith, SFX, SFX Merger Company, a
Delaware corporation and a wholly-owned subsidiary of SFX ("Acquiror Sub"),
and Multi-Market Radio, Inc., a Delaware corporation (the "Company"), are
entering into an amendment to the Amended and Restated Agreement and Plan of
Merger (as amended, the "Merger Agreement"; capitalized terms used without
definition herein having the meanings ascribed thereto in the Merger
Agreement);
WHEREAS, the Stockholders are collectively the record and
beneficial owners on the date hereof of 256,355 shares of Class A Common
Stock, $.01 of par value, of the Company (the "Shares") (excluding any
holdings of Class A Warrants and Class B Warrants);
WHEREAS, approval of the Merger Agreement and the Merger by the
Company's stockholders is a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the amendment to the
Merger Agreement, SFX has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the Parties hereto agree as
follows:
Section 1. Voting Agreement. From the date of this Agreement
until December 31, 1996, the Stockholders hereby agree that at any meeting
of the stockholders of the Company, however called, and any action by
consent of the stockholders of the Company, the Stockholders shall vote the
Shares, and any other voting securities of the Company, whether issued
heretofore or hereafter, which are held of record or beneficially by the
Stockholders on the record date for such meeting or consent, (i) in favor of
the Merger and the Merger Agreement, as such Merger Agreement may be amended
from time to time in accordance with Section 2(b) hereof, (ii) in favor of
adoption and approval of an amendment to the Company's Restated Certificate
of Incorporation and any other transaction contemplated by the Merger
Agreement, as such Merger Agreement may be amended from time to time in
accordance with Section 2(b) hereof, and (iii) against any proposal for any
recapitalization, merger (other than the Merger), sale of assets or other
business combination between the Company and any person or entity (other
than SFX or Acquiror Sub or any affiliate thereof) or any other action or
agreement that is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially adversely affect the
transactions contemplated by the Merger Agreement.
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Section 2. Effectiveness; Termination and Amendment to Merger
Agreement. (a) It is a condition precedent to the effectiveness of this
Agreement that the amendment to the Merger Agreement shall have been
executed and delivered as contemplated. In the event that (i) the Merger
Agreement is terminated in accordance with its terms or (ii) the
consideration to be paid in the Merger to the holders of the Class A Common
Stock of the Company is less than $12.00 (subject to adjustment as set forth
in the Merger Agreement) in value per share as calculated pursuant to the
Merger Agreement, this Agreement shall automatically terminate and be of no
further force or effect. Upon such termination, except for any rights any
party may have in respect of any breach by any other party of its
obligations hereunder, none of the parties hereto shall have any further
obligation or liability hereunder.
(b) An amendment to the Merger Agreement shall be deemed to be
made in accordance with this Agreement if (i) approved by the Independent
Committee of MMR, (ii) an opinion is obtained from Oppenheimer & Co., Inc.
substantially to the effect that the consideration to be paid to the holders
of MMR Class A Common Stock (other than Messrs. Morrow, Ferrel and
Sillerman) is fair from a financial point of view, and (iii) the
consideration to be paid in the Merger to the holders of the Class A Common
Stock of the Company is not less than $12.00 (subject to adjustment as set
forth in the Merger Agreement) in value per share, as calculated pursuant to
the Merger Agreement, and the transaction is structured as a tax-free
reorganization.
Section 3. Representations and Warranties. SFX represents and
warrants (i) that this Agreement has been duly executed and delivered by SFX
and constitutes the valid and binding agreement of SFX, enforceable against
SFX in accordance with its terms and (ii) that it will notify the Company of
this Agreement. The Stockholders represent and warrant to SFX as follows:
This Agreement has been duly executed and delivered by each of the
Stockholders and constitutes the valid and binding agreement of the
Stockholders, enforceable against the Stockholders in accordance with its
terms. The Shares are the only voting securities of the Company owned
(beneficially or of record) by the Stockholders on the date hereof (except
for any Class A Warrants and Class B Warrants), and, except as provided in
this Agreement, the Shares are not subject to any voting trust, voting
agreement or similar arrangement whatsoever. The Stockholders have not
negotiated or discussed the contents of this Agreement with any officer or
director of the Company, or representative of the Company acting in such
capacity.
Section 4. Indemnity. SFX agrees to indemnify and hold harmless
Stockholders, and all directors, officers, agents and other persons, if any,
who control such Stockholders within the meaning of Section 15 of the
Securities Act of 1933, from and against any and all liabilities, damages,
costs and expenses (including the fees of one counsel) which may arise or be
asserted against or may be incurred by stockholders, from any claims,
actions or proceedings arising out of this Agreement or any of the
transactions contemplated hereby asserted by parties not signatory hereto or
asserted in derivative actions brought other than by Stockholders.
Section 5. Miscellaneous. (a) Amendments, Waivers, Etc. This
Agreement may not be amended, changed, supplemented, waived or otherwise
modified or terminated except by an
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instrument in writing signed by SFX and the Stockholders.
(b) Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to
such subject matter. There are no representations, warranties or covenants
by the parties hereto relating to such subject matter other than those
expressly set forth in this Agreement.
(c) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
(d) Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of and shall not be enforceable by any person or entity
which is not a party hereto.
(e) Governing Law. This Agreement is governed by and construed
in accordance with the laws of the State of Delaware (without regard to
conflict of laws principles).
(f) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together constitute an instrument. Each counterpart may consist of a
number of copies each signed by less that all, but together signed by all,
the Parties hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first above .
SFX BROADCASTING, INC.
By:
Name:
Title:
GABRIEL CAPITAL, L.P.
By: /s/ J. Ezra Merkin
Name: J. Ezra Merkin
Title: General Partner
ARIEL FUND LIMITED
By: Meespierson Management (Cayman) Limited
By: /s/ Peter A. De Ruijter
Name: Peter A. De Ruijter
Title: Director
By: /s/ Martin Byrne
Name: Martin Byrne
Title: Assistant Secretary
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