As filed with the Securities and Exchange Commission on November 14 , 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
AMERICAN RADIO SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 4832 04-3196245
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
116 Huntington Avenue, Boston Massachusetts 02116
(617) 375-7500
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
--------------------
STEVEN B. DODGE
AMERICAN RADIO SYSTEMS CORPORATION
116 Huntington Avenue
Boston, Massachusetts 02116
(617) 375-7500
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
--------------------
Copies to:
NORMAN A. BIKALES, ESQ. JOSEPH W. CONROY, ESQ.
SULLIVAN & WORCESTER LLP HUNTON & WILLIAMS
One Post Office Square 175001 Pinnacle Drive, Suite 700
Boston, MA 02109 McLean, Virginia 22102
(617) 338-2800 (703) 714-7400
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective and all
other conditions to the merger of EZ Communications, Inc. with and into American
Radio Systems Corporation pursuant to the Agreement and Plan of Merger described
in the accompanying Proxy Statement/Prospectus have been satisfied or waived.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reimbursement plans, check the following box. |_|
---------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed Proposed
Amount Maximum Maximum Aggregate
Title of Each Class of to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Security(1) Offering Price(1) Registration Fee(2)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.01 par
value............................ 532,200 $ (1) $ (2) $3,909 (2)
<FN>
===================================================================================================================
(1) The Securities to be offered hereby will be offered pursuant to a fixed
exchange ratio of shares of Class A Common Stock, $0.01 par value, of
American Radio Systems Corporation for shares of Class A Common Stock,
$0.01 par value, of EZ Communications, Inc.
(2) Pursuant to Rule 457(f), the maximum aggregate offering price has been
determined by the value of the shares of EZ Communications, Inc. (based on
the average of the bid and asked price on the Nasdaq National Market on
November 13, 1996) to be acquired by American Radio Systems Corporation,
less the cash consideration to be paid.
</FN>
</TABLE>
<PAGE>
EXPLANATORY STATEMENT
This registration statement is being filed pursuant to Rule 462(b). The
contents of Registration Statement No. 333-15231 are hereby incorporated by
reference.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
American Radio Systems Corporation has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Boston, Commonwealth of Massachusetts, on November 14, 1996.
AMERICAN RADIO SYSTEMS
CORPORATION
By: /s/ Justin D. Benincasa
Justin D. Benincasa
Corporate Controller and
Chief Accounting Officer
Signature Title
/s/ Steven B. Dodge* Chairman of the Board, Chief
Steven B. Dodge Executive Officer, President and
Director
/s/ Joseph L. Winn* Chief Financial Officer and Director
Joseph L. Winn
/s/ Justin D. Benincasa* Corporate Controller and Chief
Justin D. Benincasa Accounting Officer
/s/ Charlton Buckley* Director
Charlton Buckley
/s/ Arnold L. Chavkin* Director
Arnold L. Chavkin
/s/ James H. Duncan, Jr.* Director
James H. Duncan, Jr.
/s/ Donald B. Hebb, Jr.* Director
Donald B. Hebb
/s/ Charles Peebler* Director
Charles Peebler
/s/ Thomas H. Stoner* Director
Thomas H. Stoner
* /s/ Justin D. Benincasa
Justin D. Benincasa
Individually and as Attorney-in-Fact
pursuant to the Power of Attorney
set forth in Registration Statement
(Commission No. 333-15231)
<PAGE>
Exhibits
Exhibit No.
5 Opinion of Sullivan & Worcester LLP
8.1 Opinion of Sullivan & Worcester LLP as to tax matters
8.2 Opinion of Hunton & Williams as to tax matters
23.1 Consents of Sullivan & Worcester LLP
23.2 Consent of Hunton & Williams
23.3 Consents of Deloitte & Touche LLP
23.4 Consent of KPMG Peat Marwick LLP
23.5 Consent of Price Waterhouse LLP
23.6 Consent of Miller, Kaplan, Arase & Co.
23.7 Consent of Morgan Stanley & Co. Incorporated
23.8 Consent of CS First Boston Corporation
23.9 Consent of Ernst & Young LLP
23.10 Consent of Duncan's American Radio (Duncan
Radio Market Guide)
23.11 Consent of The Arbitron Company
<PAGE>
<TABLE>
<CAPTION>
Exhibits
Exhibit No.
<S> <C> <C> <C>
5 Opinion of Sullivan & Worcester LLP........................... Filed herewith as Exhibit 5
8.1 Opinion of Sullivan & Worcester LLP as to tax matters......... Filed herewith as Exhibit 8.1
8.2 Opinion of Hunton & Williams as to tax matters................ Filed herewith as Exhibit 8.2
23.1 Consents of Sullivan & Worcester LLP.......................... Contained in the opinions of
Sullivan & Worcester LLP
filed as Exhibits 5 and 8.1
23.2 Consent of Hunton & Williams.................................. Contained in the opinion of
Hunton & Williams filed
as Exhibit 8.2
23.3 Consents of Deloitte & Touche LLP............................. Filed herewith as Exhibit 23.3
23.4 Consent of KPMG Peat Marwick LLP.............................. Filed herewith as Exhibit 23.4
23.5 Consent of Price Waterhouse LLP............................... Filed herewith as Exhibit 23.5
23.6 Consent of Miller, Kaplan, Arase & Co......................... Filed herewith as Exhibit 23.6
23.7 Consent of Morgan Stanley & Co. Incorporated.................. Filed herewith as Exhibit 23.7
23.8 Consent of CS First Boston Corporation........................ Filed herewith as Exhibit 23.8
23.9 Consent of Ernst & Young LLP.................................. Filed herewith as Exhibit 23.9
23.10 Consent of Duncan's American Radio (Duncan
Radio Market Guide)........................................... Filed herewith as Exhibit 23.10
23.11 Consent of The Arbitron Company............................... Filed herewith as Exhibit 23.11
</TABLE>
<PAGE>
Exhibit 5
[Sullivan & Worcester LLP letterhead]
November 14, 1996
American Radio Systems Corporation
116 Huntington Avenue
Boston, MA 02116
Re: Registration Statement on Form S-4
8,722,848 shares of Class A Common Stock,
par value $.01 per share
Dear Sir or Madam:
In connection with the registration under the Securities Act of 1933,
as amended (the "Securities Act"), by American Radio Systems Corporation, a
Delaware corporation ("American"), of 8,722,848 shares (the "Shares") of its
Class A Common Stock, par value $.01 per share (the "Class A Common Stock"), the
following opinion is furnished to you to be filed with the Securities and
Exchange Commission (the "Commission") as Exhibit 5 to American's registration
statement on Form S-4 (the "Registration Statement"). The Registration Statement
will be filed with the Commission pursuant to Rule 462(b) of the Securities Act.
It incorporates by reference the registration statement on Form S-4 (File No.
333-15231) which we have been advised has been declared effective by the
Commission on November 1, 1996 (the "Original Registration Statement"). The
Shares will be issued as consideration under the Agreement and Plan of Merger,
dated August 5, 1996, and as amended and restated as of September 27, 1996 (the
"Merger Agreement"), by and among American, American Merger Corporation, a
Delaware corporation and a wholly-owned subsidiary of American (the "American
Subsidiary"), and EZ Communications, Inc. ("EZ"), pursuant to which either (a)
EZ will be merged with and into American Subsidiary (the "Subsidiary Merger") or
(b) EZ will be merged with and into American (the "Direct Merger").
We have acted as counsel to American in connection with the preparation
of the Registration Statement and the Original Registration Statement, and we
have examined originals or copies, certified or otherwise identified to our
satisfaction, of the Registration Statement, the Original Registration
Statement, the Certificate of Incorporation of American, corporate records,
certificates and statements of officers and accountants of American, and of
public officials, and such other documents as we have considered necessary in
order to furnish the opinion hereinafter set forth. We express no opinion herein
as to any laws other than the General Corporation Law of the State of Delaware.
<PAGE>
American Radio Systems Corporation
November 14, 1996
Page 2
The authorized capital stock of American consists of 1,000,000 shares
of preferred stock, par value $.01 per share (the "Preferred Stock"), the
relative designations, preferences, rights and restrictions of which are to be
designated from time to time by the Board of Directors of American, 25,000,000
shares of Class A Common Stock, par value $.01 per share (the "Class A Common
Stock"), 10,000,000 shares of Class B Common Stock, par value $.01 per share
(the "Class B Common Stock"), and 6,000,000 shares of Class C Common Stock, par
value $.01 per share (the "Class C Common Stock" and, collectively with the
Class A Common Stock and the Class B Common Stock, the "Common Stock").
Pursuant to a proposal contained in the Joint Proxy-Prospectus of
American mailed on November 9, 1996, the shareholders of American will be asked
at a Special Meeting of Shareholders to be held on December 17, 1996 (the
"American Special Meeting") to adopt and approve an amendment (the "Charter
Amendment") to the Restated Certificate of Incorporation, as amended, of
American (the "American Restated Certificate") to increase the total number of
authorized shares of Preferred Stock to 10,000,000 and to increase the total
number of authorized shares of Class A Common Stock and Class B Common Stock to
100,000,000 and 15,000,000, respectively.
Based on and subject to the foregoing and assuming that the Charter
Amendment is duly adopted and approved by the shareholders at the American
Special Meeting and that such amendment is duly filed with the Secretary of
State of the State of Delaware, we are of the opinion that the Shares have been
duly and validly authorized by American and the Shares, when issued as
authorized in accordance with the terms of the Merger Agreement and upon
acceptance for filing of the Certificate of Merger by the Secretary of State of
the State of Delaware and Articles of Merger are filed with the State
Corporation Commission of the Commonwealth of Virginia and such Commission shall
have issue a Certificate of Merger, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm made therein under the
caption "Experts." In giving such consent, we do not thereby admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
<PAGE>
Exhibit 8.1
November 14, 1996
American Radio Systems Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
Ladies and Gentlemen:
You have requested our opinion as to certain federal income tax
consequences of the transactions referred to below. This opinion is delivered in
connection with (i) the Agreement and Plan of Merger, dated as of August 5,
1996, as amended, by and among American Radio Systems Corporation, a Delaware
corporation ("American"), American Merger Corporation, a Delaware corporation
and direct wholly-owned subsidiary of American ("American Subsidiary") and EZ
Communications, Inc., a Virginia Corporation ("EZ"), which agreement, as
amended, and all other agreements contemplated thereby, are collectively
referred to herein as the "Merger Agreement." Capitalized terms used herein
shall have the same meanings they have in the Merger Agreement, except as
otherwise defined herein, and "Code" shall mean the Internal Revenue Code of
1986, as amended.
Facts. The Merger Agreement provides that at the Effective Time EZ will
be merged with and into American; provided, however, that if the Board of
Directors of American determines that the consent of the holders of the 9 3/4%
Senior Subordinated Notes due 2005 of EZ (the "EZ Notes") cannot be obtained on
terms satisfactory to American, EZ shall be merged with and into American
Subsidiary (such merger, whether into American or American Subsidiary, the
"Merger"). At the Effective Time, the separate corporate existence of EZ shall
cease, and American or American Subsidiary, as applicable, shall continue as the
surviving corporation (the "Surviving Corporation"), and shall succeed to and
assume all of the rights, properties, liabilities and obligations of EZ.
Pursuant to the Merger Agreement, at the Effective Time:
<PAGE>
American Radio Systems Corporation
November 14, 1996
Page 2
(a) Each share of 7% Convertible Exchangeable Preferred Stock,
par value $.01 per share, of American issued and outstanding
immediately prior to the Effective Time shall remain outstanding.
(b) Each share of Common Stock, par value $.01 per share, of
American issued and outstanding immediately prior to the Effective Time
shall remain outstanding.
(c) Each share of Class A Common Stock, par value $.01 per
share, and each share of Class B Common Stock, par value $.01 per
share, of EZ issued and outstanding immediately prior to the Effective
Time (other than Dissenting Shares) shall be converted into the right
to receive $11.75 in cash and nine-tenths (0.9) of a share of Class A
Common Stock, par value $.01 per share, of American.
(d) Each share of EZ Common Stock owned by American or any of
its Subsidiaries immediately prior to the Effective Time shall be
canceled.
(e) If the Merger is into American Subsidiary, each share of
common stock, par value $.01 per share, of American Subsidiary issued
and outstanding immediately prior to the Effective Time shall remain
outstanding as one share of common stock, par value $.01 per share, of
the Surviving Corporation.
For federal income tax purposes, the Merger is intended to qualify as a
tax-free reorganization within the meaning of Section 368(a)(1)(A) and, if the
Merger is into American Subsidiary, Section 368(a)(2)(D) of the Code.
Assumptions. In rendering our opinions, we have with your permission
made the following assumptions, and we have further assumed that the Merger will
be consummated pursuant to the terms of and in accordance with the Merger
Agreement.
A. The fair market value of the American stock and other consideration
received by each EZ shareholder in the Merger will be approximately equal to the
fair market value of the EZ stock surrendered in exchange therefor.
B. There is no plan or intention by the stockholders of EZ who own,
directly or indirectly, a five percent (5%) or greater interest (by value) in
EZ, and to the best of the knowledge of the management of EZ there is no plan or
intention on the part of the remaining EZ shareholders, to sell, exchange or
otherwise dispose of a number of shares of American stock received in the Merger
that would reduce the EZ shareholders' ownership of American stock to a number
of shares having a value, as of the date of the Merger, which is less than fifty
percent (50%) of the value of all of the formerly outstanding stock of EZ as of
the same date. For purposes of this assumption, shares of EZ stock exchanged for
cash or other property, surrendered by dissenters, or exchanged for cash in lieu
of fractional shares of American stock will be treated as outstanding EZ stock
on the date of the Merger. Moreover,
<PAGE>
American Radio Systems Corporation
November 14, 1996
Page 3
shares of EZ stock and shares of American stock held by EZ shareholders and
otherwise sold, redeemed, or disposed of prior or subsequent to the Merger have
been considered in making this assumption.
C. If EZ merges into American Subsidiary, following the Merger American
Subsidiary will hold at least ninety percent (90%) of the fair market value of
the net assets of EZ and at least seventy percent (70%) of the fair market value
of the gross assets of EZ held immediately prior to the Effective Time. For
purposes of this representation, amounts paid by EZ to dissenters, amounts paid
by EZ to stockholders who receive cash or other property, amounts used by EZ to
pay reorganization expenses, and all redemptions and distributions made by EZ
immediately preceding the Merger (except for regular, normal dividends) are
included as assets of EZ immediately prior to the Effective Time. Moreover,
liabilities of EZ to pay reorganization expenses are excluded from the
computation of the fair market value of its net assets immediately prior to the
Effective Time.
D. American is in control of American Subsidiary and will be in control
of American Subsidiary at the Effective Time.
E. American Subsidiary has no plan or intention to issue additional
shares of stock that would result in American losing control of American
Subsidiary.
F. American Subsidiary has no plan or intention to issue any warrants,
options, convertible securities, or any other type of right pursuant to which
any person could acquire stock in American Subsidiary that, if exercised or
converted, would result in American losing control of American Subsidiary.
G. If EZ merges into American Subsidiary, American has no plan or
intention to liquidate American Subsidiary, to merge American Subsidiary with or
into another corporation, or to sell or otherwise dispose of any of the stock of
American Subsidiary, unless tax counsel to American, and Hunton & Williams, have
advised that such liquidation, merger or other disposition will not adversely
affect the qualification of the merger as a tax-free reorganization under
Section 368(a) of the Code.
H. No stock of American Subsidiary will be issued in the Merger.
I. American has no plan or intention to reacquire any of its stock
issued in the Merger or to make any extraordinary distribution with respect to
such stock.
J. No share of EZ common stock has been or will be redeemed in
anticipation of the Merger, and EZ has not made and will not make any
extraordinary distribution with respect to its stock in anticipation of the
Merger.
K. American and American Subsidiary have no plan or intention to sell
or otherwise dispose of any of the assets of EZ acquired in the Merger, except
for dispositions
<PAGE>
American Radio Systems Corporation
November 14, 1996
Page 4
made in the ordinary course of business or transfers described in Section
368(a)(2)(C) of the Code.
L. The liabilities of EZ assumed by American or American Subsidiary, as
the case may be, in the Merger, and the liabilities to which the assets of EZ
transferred in the Merger are subject, were incurred by EZ in the ordinary
course of its business.
M. Following the Merger, American or American Subsidiary, as the case
may be, will continue the historic business of EZ or use a significant portion
of EZ's historic business assets in a business.
N. American, American Subsidiary, EZ and the shareholders of EZ will
pay their respective expenses, if any, incurred in connection with the Merger,
except that all filing fees and all transfer and other taxes incurred by
American and EZ will be shared equally by American and EZ.
O. There is no intercorporate indebtedness existing between or among
any of American, American Subsidiary or EZ that was issued, acquired, or will be
settled at a discount, provided, however, that prior to the Effective Time
American may acquire, in market transactions or otherwise, some or all of the EZ
Notes.
P. None of American, American Subsidiary or EZ is an "investment
company" as defined in Sections 368(a)(2)(F)(iii) and (iv) of the Code.
Q. None of American, American Subsidiary or EZ is under the
jurisdiction of a court in a Title 11 or similar case within the meaning of
Section 368(a)(3)(A) of the Code.
R. The fair market value of the assets of EZ transferred to American or
American Subsidiary, as the case may be, in the Merger will equal or exceed the
sum of the liabilities assumed by American plus the amount of liabilities, if
any, to which the transferred assets are subject.
S. The payment of cash in lieu of fractional shares of American stock
is solely for the purpose of avoiding the expense and inconvenience to American
of issuing fractional shares and does not represent separately bargained for
consideration. The total cash consideration that will be paid in the Merger to
the EZ shareholders, instead of issuing fractional shares of American stock,
will not exceed one percent (1%) of the total consideration that will be issued
in the Merger to the EZ shareholders in exchange for their shares of EZ stock.
The fractional share interests of each EZ shareholder will be aggregated, and no
EZ shareholder will receive cash in an amount equal to or greater than the value
of one full share of American stock.
T. No consideration for the Merger has been or will be provided by
American to EZ or to the shareholders of EZ other than as expressly provided for
in the Merger
<PAGE>
American Radio Systems Corporation
November 14, 1996
Page 5
Agreement.
U. None of the compensation received by any shareholder-employees of EZ
will be separate consideration for, or allocable to, any of their shares of EZ
stock; none of the shares of American stock received by any
shareholder-employees of EZ will be separate consideration for, or allocable to,
any employment agreement; and the compensation paid to any shareholder-employees
of EZ will be for services actually rendered and will be commensurate with
amounts paid to third parties bargaining at arm's length for similar services.
Opinions. Based on the foregoing facts and assumptions and assuming the
accuracy thereof, we are of the opinion that for federal income tax purposes:
1. The Merger will constitute a reorganization within the meaning of
Section 368(a) of the Code. American and EZ will each be "a party to a
reorganization" within the meaning of Section 368(b) of the Code.
2. EZ will recognize no gain or loss on the transfer of its assets to
American or American Subsidiary, as the case may be, in the Merger. Sections 357
and 361 of the Code.
3. American or American Subsidiary, as the case may be, will recognize
no gain or loss on the receipt of EZ's assets in the Merger. Section 1032 of the
Code.
4. The basis of EZ's assets in the hands of American or American
Subsidiary, as the case may be, immediately after the Merger will be the same as
the basis of such assets in the hands of EZ immediately prior to the Merger.
Section 362 of the Code.
5. No gain or loss will be recognized by an American shareholder on his
American stock as a result of the Merger, and such shareholder's tax basis and
holding period in his American stock will be the same following the Merger as
they were preceding.
No opinion is expressed concerning the consequences to any party of any
matter other than those specifically addressed above. In particular, we express
no opinion as to the tax consequences of any acquisition by American of all or
any of the EZ Notes, or with respect to the state or local tax treatment of the
Merger.
Miscellaneous. The foregoing opinions are based on the Code as in
effect on the date hereof and administrative and judicial interpretations of it.
No assurance can be given that the Code will not change or that such
interpretations will not be revised or amended adversely, possibly with
retroactive effect.
<PAGE>
American Radio Systems Corporation
November 14, 1996
Page 6
This opinion is not intended to constitute the opinion required by
Section 7.2(g) of the Merger Agreement, which opinion will be delivered at the
Effective Time and be based upon executed representations made at the Effective
Time by American, American Subsidiary, EZ and certain EZ shareholders.
We hereby consent to the filing of this opinion as an exhibit to
American's registration statement on Form S-4 (the "Registration Statement")
relating to its issuance of 8,722,848 shares of its Class A Common Stock, $.01
par value per share, pursuant to the Merger Agreement and to the reference to
our firm made in the Registration Statement under the caption "Legal Matters".
The Registration Statement will be filed with the Commission pursuant to Rule
462(b) of the Securities Act. It incorporates by reference the registration
statement on Form S-4 (File No. 333-15231) which we have been advised has been
declared effective by the Commission on November 1, 1996 (the "Original
Registration Statement"). In giving such consent, we do not thereby admit that
we come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933 or the rules and regulations promulgated
thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
Exhibit 8.2
[HUNTON & WILLIAMS LETTERHEAD]
November 14, 1996
EZ Communications, Inc.
10800 Main Street
Fairfax, Virginia 22030
Merger of EZ Communications, Inc.
Into American Radio Systems Corporation
Certain Federal Income Tax Matters
Ladies and Gentlemen:
We have acted as counsel to EZ Communications, Inc. ("EZ"), a Virginia
corporation, in connection with the proposed merger of EZ with and into American
Radio Systems Corporation ("American"), a Delaware corporation, (the "Direct
Merger") or, in the alternative if American so elects, the proposed merger of EZ
corporation and wholly-owned subsidiary of American formed for purposes of
effecting such merger (the "Subsidiary Merger"). The Subsidiary Merger will be
effected in lieu of the Direct Merger only if American's Board of Directors
determines that the consent of the holders of certain debt of EZ cannot be
obtained on terms satisfactory to American. In either event, the separate
corporate existence of EZ will cease, and either American or American
Subsidiary, as applicable, will continue as the surviving corporation. The term
"Merger" is used herein to refer to either the Direct Merger or the Subsidiary
Merger, as applicable.
EZ has outstanding two classes of stock, Class A Common Stock and Class
B Common Stock (collectively, "EZ Common Stock"). The two classes are identical
except for differences in voting rights. In the Merger, each outstanding share
of EZ Common Stock, except any shares for which the holder exercises and
perfects the statutory right to an appraisal ("Dissenting Shares"), will be
converted into the right to receive (i) $11.75 in cash and (ii) 0.9 of a share
of American Class A Common Stock (the "Merger Consideration"). Any EZ
shareholder who otherwise would become entitled to a fractional share of
American Class A Common Stock as a result of the Merger will receive cash from
American in lieu of the fractional share. If the Subsidiary Merger is effected,
American will provide the funds to pay the cash portion of the Merger
Consideration and the cash paid for any Dissenting Shares. Each outstanding
option issued by EZ to purchase EZ Common Stock will be converted into an option
to purchase a number of shares of American Class A Common Stock equal to the
product of 0.9 multiplied by the number of shares of EZ Common Stock that the
option holder is entitled to purchase under the option.
<PAGE>
EZ Communications, Inc.
November 14, 1996
Page 2
You have requested our opinion concerning certain federal income tax
consequences of the Merger. In giving this opinion, we have reviewed the
Agreement and Plan of Merger. In giving this opinion, we have reviewed the
Agreement and Plan of Merger dated as of August 5, 1996, as amended and restated
as of September 27, 1996, among EZ, American, and American Subsidiary; the Form
S-4 Registration Statement under the Securities Act of 1933 relating to the
Merger (the "S-4"); and such other documents as we have considered necessary. In
addition, officers of EZ and American, as appropriate, have advised us as
follows:
1. The fair market value of the Merger Consideration received
by an EZ shareholder in exchange for EZ Common Stock will be approximately equal
to the fair market value of EZ Common Stock surrendered in exchange.
2. None of the compensation received by any
shareholder-employee of EZ will be separate consideration for, or allocable to,
any shares of EZ Common Stock; none of the Merger Consideration received by any
shareholder-employee will be separate consideration for, or allocable to, any
employment agreement; and the compensation paid to any shareholder-employee will
be for services actually rendered and will be commensurate with amounts paid to
third parties bargaining at arm's length for similar services.
3. The payment of cash in lieu of fractional shares of
American Class A Common Stock is solely for the purpose of avoiding the expense
and inconvenience to American of issuing fractional shares and does not
represent separately bargained-for consideration. The total cash that will be
paid in the Merger in lieu of fractional shares of American Class A Common Stock
will not exceed one percent of the total consideration that will be issued in
the Merger to EZ shareholders in exchange for their EZ Common Stock.
4. No share of EZ Common Stock has been or will be redeemed in
anticipation of the Merger, and EZ has not made and will not make any
extraordinary distribution with respect to its stock in anticipation of the
Merger.
5. American has no plan or intention to reacquire any of the
American Class A Common Stock issued in the Merger or to make any extraordinary
distribution with respect to such stock.
6. There is, and on the effective date of the Merger (the
"Effective Date") there will be, no plan or intention by the EZ shareholders to
sell, exchange, or otherwise dispose of a number of shares of American Class A
Common Stock received in the Merger that would reduce the EZ shareholders'
ownership of American Class A Common Stock to a number of shares having a fair
market value, as of the Effective Date, of less than 50 percent of the formerly
outstanding EZ Common Stock as of the Effective Date. Dissenting Shares and
shares of EZ Common Stock and American Class A Common Stock held by EZ
shareholders and sold, redeemed, or otherwise disposed of are considered in
making the preceding determination.
<PAGE>
EZ Communications, Inc.
November 14, 1996
Page 3
7. Following the Merger, American, or if the Subsidiary Merger
is effected, American Subsidiary, will continue the historic business of EZ or
use a significant portion of EZ's historic business assets in a business.
8. The liabilities of EZ that will be assumed by American, or
if the Subsidiary Merger is effected, by American Subsidiary, and the
liabilities, if any, to which assets of EZ are subject were incurred and, as of
the Effective Date, will have been incurred by EZ in the ordinary course of
business.
9. There is, and on the Effective Date there will be, no
intercorporate indebtedness existing between (a) EZ or any subsidiary of EZ and
(b) American or any subsidiary of American, provided, however, that prior to the
Effective Date American may acquire, in market transactions or otherwise, some
or all of certain publicly held indebtedness of EZ (the "EZ Public Debt").
10. Neither American nor any subsidiary of American (a) owns
beneficially any EZ Common Stock or will acquire any EZ Common Stock in
anticipation of the Merger, (b) has transferred or will transfer cash or other
property to EZ or any subsidiary of EZ in anticipation of the Merger, or (c) has
made or will make any loan to EZ or any subsidiary of EZ in anticipation of the
Merger.
11. On the Effective Date, the fair market value of the assets
of EZ transferred to American, or if the Subsidiary Merger is effected, to
American Subsidiary, will exceed the sum of EZ's liabilities assumed by American
plus the amount of liabilities, if any, to which the assets are subject.
12. There is, and on the Effective Date there will be, no plan
or intention for American or American Subsidiary to sell or otherwise dispose of
any of the assets of EZ acquired in the Merger, except for dispositions made in
the ordinary course of business.
13. American, EZ, and the EZ shareholders will pay their
respective expenses, if any, incurred in connection with the Merger, except that
all filing fees and all transfer and other taxes incurred by American and EZ
will be shared equally by American and EZ.
14. For each of EZ, American, and if the Subsidiary Merger is
effected, American Subsidiary, less than 50 percent of the fair market value of
its total assets consists of stock and securities, or less than 80 percent of
the fair market value of its total assets consists of assets held for
investment. For purposes of the preceding sentence, (a) total assets exclude
cash, cash items (including accounts receivable and cash equivalents), and
United States government securities; (b) a corporation's total assets exclude
stock and securities issued by any subsidiary at least 50 percent of the voting
power or 50 percent of the total fair market value of the stock of which is
owned by the corporation, but the corporation is treated as owning directly a
ratable share (based on the percentage of the fair market of the subsidiary's
stock owned by the corporation) of the assets owned by any such
<PAGE>
EZ Communications, Inc.
November 14, 1996
Page 4
subsidiary; (c) the term "securities" includes, among other things, partnership
interests other than interests held as a managing general partner; and (d) an
asset is held for investment if it is held primarily for gain from appreciation
in value and/or for the production of passive income (including royalties,
rents, dividends, and interest).
15. At all times during the five-year period ending on the
Effective Date, the fair market value of all EZ's United States real property
interests has been less than 50 percent of the total fair market value of (a)
its United States real property interests, (b) its interests in real property
located outside the United States, and (c) its other assets used or held for use
in a trade or business. For purposes of the preceding sentence, (x) United
States real property interests include all interests (other than an interest
solely as a creditor) in real property and associated personal property (such as
movable walls and furnishings) located in the United States or the Virgin
Islands and interests in any corporation (other than a controlled corporation)
owning any United States real property interest; (y) EZ is treated as owning its
proportionate share (based on the relative fair market value of its ownership
interest to all ownership interests) of the assets owned by any controlled
corporation or any partnership, trust or estate in which EZ is a partner or
beneficiary; and (z) any such entity in turn is treated as owning its
proportionate share of the assets owned by any controlled corporation or any
partnership, trust, or estate in which the entity is a partner or beneficiary.
As used in this paragraph, "controlled corporation" means any corporation at
least 50 percent of the fair market value of the stock of which is owned by EZ,
in the case of a first-tier subsidiary of EZ, or by a controlled corporation, in
the case of a lower-tier subsidiary.
16. Any shares of American Class A Common Stock received in
exchange for shares of EZ Common Stock that (a) were acquired in connection with
the performance of services, including stock acquired through the exercise of an
option or warrant acquired in connection with the performance of services, and
(b) are subject to a substantial risk of forfeiture within the meaning of
section 83(a) of the Internal Revenue Code (the "Code") will be subject to
substantially the same risk of forfeiture after the Merger.
17. No outstanding EZ Common Stock acquired in connection with
the performance of services was or will have been acquired within six months
before the Effective Date by any person subject to section 16(b) of the
Securities Exchange Act of 1934 other than pursuant to an option granted more
than six months before the effective date of the Merger.
18. EZ has not filed, and holds no asset subject to, a consent
pursuant to section 341(f) of the Code and regulations thereunder.
19. EZ is not a party to, and holds no asset subject to, a
"safe harbor lease" under former section 168(f)(8) of the Code and regulations
thereunder.
Also, specifically with respect to the Subsidiary Merger, such officers
of EZ and American have advised that:
<PAGE>
EZ Communications, Inc.
November 14, 1996
Page 5
20. American Subsidiary will acquire at least 90 percent of
the fair market value of the net assets and at least 70 percent of the fair
market value of the gross assets held by EZ immediately before the Merger. For
this purpose, any amounts paid by EZ or American Subsidiary (to the extent not
paid with funds contributed by American) for (a) expenses related to the Merger,
(b) the cash portion of the Merger Consideration, and (c) Dissenting Shares, and
any redemptions and distributions (except for regular, normal dividends) made by
EZ in connection with the Merger, will be included as assets of EZ held
immediately before the Merger.
21. American Subsidiary has outstanding only one class of
stock, and American owns all the outstanding shares of such class. Following the
Merger, American Subsidiary will not issue additional shares of its stock that
would result in American's owning directly less than 80 percent of the total
combined voting power of all classes of American Subsidiary's voting stock or
less than 80 percent of each class of American Subsidiary's nonvoting stock.
22. There is, and on the Effective Date there will be, no plan
or intention to liquidate American Subsidiary, to merge American Subsidiary into
another corporation, or to sell or otherwise dispose of any stock of American
Subsidiary, unless tax counsel to American, and Hunton & Williams, have advised
that any such merger, liquidation, sale or other disposition would not adversely
affect the qualification of the Subsidiary Merger as a tax-free reorganization
under the Code.
On the basis of the foregoing, and assuming that (a) with respect to
any nonresident alien or foreign entity that is a shareholder of EZ, EZ will
comply with all applicable statement and notification requirements (if any) of
Treasury Regulation (S) 1.897-2(g) & (h), and (b) the Merger will be consummated
in accordance with the Agreement and Plan of Merger, we are of the opinion that
(under existing law) for federal income tax purposes.
1. The Direct Merger, if effected, will be a reorganization
within the meaning of section 368(a) (1) (A) of the Code, and the Subsidiary
merger, if effected, will be a reorganization within the meaning of section
368(a) (1) (A) by reason of section 368(a) (2) (D) of the Code.
2. EZ will not recognize gain or loss (a) on the transfer of
its assets to American, or if the Subsidiary Merger is effected, to American
Subsidiary, in exchange for the Merger Consideration and the assumption of EZ's
liabilities, or (b) on the constructive distribution of the Merger Consideration
to the EZ shareholders. We express no opinion, however, whether EZ will
recognize any income, gain or loss as a result of American's acquisition of some
or all of the EZ Public Debt or the ownership by American of some or all of the
EZ Public Debt as of the Effective Date.
3. An EZ shareholder will recognize gain realized on the
exchange of his shares of EZ Common Stock for the Merger Consideration
(including any fractional share interest) to the extent of the amount of cash
received (excluding cash paid in lieu of a
<PAGE>
EZ Communications, Inc.
November 14, 1996
Page 6
fractional share of American Class A Common Stock). Whether any part of the gain
recognized will be taxable as a dividend will be determined pursuant to section
356(a) (2) of the Code, and we express no opinion whether any gain will be
taxable as a dividend. No loss will be recognized on the exchange.
4. Cash received by an EZ shareholder in lieu of a fractional
share of American Class A Common Stock will be treated as having been received
as full payment in exchange for such fractional share pursuant to section 302(a)
of the Code. Accordingly, an EZ shareholder who receives cash in lieu of a
fractional share will recognize gain or loss equal to the difference between the
amount of cash received and the shareholder's basis in the fractional share
interest.
5. The aggregate basis of the shares of American Class A
Common Stock (including any fractional share interest) received in the Merger by
an EZ shareholder will be the same as the aggregate basis of the shares of EZ
Common Stock exchanged therefor, decreased by the amount of cash received
(excluding cash received in lieu of a fractional share) and increased by the
amount of gain recognized by such shareholder (excluding gain recognized with
respect to the receipt of cash in lieu of a fractional share).
6. The holding period for shares of American Class A Common
Stock (including any fractional share interest) received by an EZ shareholder in
the Merger will include the holding period for the shares of EZ Common Stock
exchanged therefor, if such shares of EZ Common Stock are held as a capital
asset on the Effective Date.
We are also of the opinion that the material federal income tax
consequences of the Merger to EZ shareholders are fairly summarized in the S-4
under the headings "Summary-- Certain Federal Income Tax Consequences to Holders
of EZ Common Stock." We consent to the use of this opinion as an exhibit to the
S-4 and to the reference to this firm under the latter heading. In giving this
consent, we do not admit that we are within the category of persons whose
consent is required by section 7 of the Securities Act of 1933 or the rules and
regulations promulgated thereunder by the Securities and Exchange Commission.
Very truly yours,
/s/ Hunton & Williams
HUNTON & WILLIAMS
<PAGE>
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of American Radio Systems Corporation and subsidiaries on Form S-4
(the "462(b) Registration Statement") of:
(1) our reports dated February 20, 1996, related to the consolidated
financial statements and related financial statement schedule of
American Radio Systems Corporation and subsidiaries as of December 31,
1994 and 1995 and for the period November 1, 1993 to December 31, 1993
and for the years ended December 31, 1994 and 1995,
(2) our reports dated March 24, 1995, related to the consolidated
statement of operations, stockholders' deficit, and cash flows and
related financial statement schedule of SBS Holding, Inc. and
subsidiary for the ten months ended October 31, 1993,
(3) our reports dated April 8, 1994, related to the consolidated
statement of operations, partners' deficiency, and cash flows and
related financial statement schedule of Atlantic Radio, L.P. and
subsidiaries (a Partnership) for the ten-month period ended October 31,
1993,
(4) our reports dated April 8, 1994, related to the statements of
operations, stockholders' equity (deficiency), and cash flows and
related financial statement schedule of Multi Market Communications,
Inc. for the year ended August 31, 1993 and the two-month period ended
October 31, 1993, and
(5) our report dated October 28, 1994, related to the statement of
operations and accumulated deficit, and cash flows and related
financial statement schedule of Boston AM Radio Corporation for the
ten-month period ended October 31, 1993,
all of the foregoing appearing in the Annual Report on Form 10-K of American
Radio Systems Corporation and subsidiaries for the year ended December 31, 1995.
We consent to the incorporation by reference in this 462(b)
Registration Statement of American Radio Systems Corporation and subsidiaries on
Form S-4 of our report dated March 13, 1996 related to the statement of net
assets to be sold and of income and cash flows derived from net assets to be
sold of The 1080 Corporation for the year ended December 31, 1995, appearing in
a Current Report on Form 8-K/A (Amendment No. 2) of American Radio Systems
Corporation and subsidiaries dated October 2, 1996.
We also consent to the incorporation by reference in the 462(b)
Registration Statement of the reference to us under the heading "Experts" in
Registration Statement No. 333-15231.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Boston, Massachusetts
November 14, 1996
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of American Radio Systems Corporation and subsidiaries on Form S-4
(the "462(b) Registration Statement") of our report dated March 8, 1996 (August
1, 1996 as to Note 8) related to the consolidated financial statements of BayCom
Partners, L.P. (a Limited Partnership) for the years ended December 31, 1994 and
1995, appearing in the Current Report on Form 8-K/A (Amendment No. 1) of
American Radio Systems Corporation and subsidiaries dated September 16, 1996,
and to the incorporation by reference in the 462(b) Registration Statement of
the reference to us under the heading "Experts" in Registration Statement No.
333-15231.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Birmingham, Alabama
November 14, 1996
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
American Radio Systems Corporation:
We consent to incorporation by reference in this Registration Statement
on Form S-4 of American Radio Systems Corporation filed pursuant to Rule 462(b)
and incorporating the previously effective Registration Statement on Form S-4
(No. 333-15231) of our report dated October 16, 1996, relating to the combined
balance sheets of WBAV-AM/FM and WPEG-FM as of December 31, 1995 and September
30, 1996, and the combined statements of earnings and division equity, and cash
flows for the periods from January 1, 1995 to May 12, 1995 and from May 13, 1995
to December 31, 1995 and the nine months ended September 30, 1996. We also
consent to the reference to our firm under the heading "Experts" in the Joint
Proxy/Prospectus. Our report contains an explanatory paragraph that refers to a
different cost basis in the financial information of WBAV-AM/FM and WPEG-FM for
periods before and after their acquisition by Evergreen Media Corporation. As a
result of such different cost basis, the financial information for periods
before and after the acquisition is not comparable.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Dallas, Texas
November 14, 1996
<PAGE>
Exhibit 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Joint Prospectus constituting part
of this Registration Statement on Form S-4 of American Radio Systems Corporation
and EZ Communications, Inc. of our report dated September 11, 1996 relating to
the combined financial statements of CBC of Baltimore, Inc. (d/b/a WOCT-FM) and
WWMX-FM, Inc. (wholly-owned subsidiaries of Capital Broadcasting Company, Inc.),
which appears in such Prospectus. We also consent to the references to us under
the headings "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Raleigh, North Carolina
November 14, 1996
<PAGE>
Exhibit 23.6
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of American Radio Systems, Corporation on Form S-4 of our report,
dated April 16, 1996 (except for Note 18 as to which the date is July 3, 1996),
on the financial statements of Henry Broadcasting Company--Special Financial
Statement Presentation, as of December 31, 1994 and 1995 and for each of the
three years in the period ended December 31, 1995, appearing in the Current
Report on Form 8-K/A of American Radio Systems Corporation dated September 16,
1996 and to the reference to us under the heading "Experts" in this Prospectus,
which is part of this Registration Statement.
/s/ Miller, Kaplan, Arase & Co.
MILLER, KAPLAN, ARASE & CO.
North Hollywood, California
November 14, 1996
<PAGE>
Exhibit 23.7
MORGAN STANLEY
MORGAN STANLEY & CO.
INCORPORATED
1585 BROADWAY
NEW YORK, NEW YORK 10036
(212) 761-4000
We hereby consent to the use in the Registration Statement and in the
related Prospectus, of American Radio Systems Corporation ("American") on Form
S-4, covering the securities of American to be issued in connection with the
merger of EZ Communications, Inc. ("EZ") with and into American Merger
Corporation, and in the related Joint Proxy Statement to American and EZ, of our
opinion dated August 5, 1996 appearing as Appendix II to such Joint Proxy
Statement/Prospectus, to the description therein of such opinion and of our
presentation to the Board of Directors of American on August 4, 1996, and to the
references therein to us under the headings "Summary--Opinions of Financial
Advisors--American," "Background of the Merger--General Background," "Background
of the Merger--Recommendation of the American Board; American's Reasons for the
Merger," and "Background of the Merger--Opinion of Financial Advisor to
American." In giving the foregoing consent, we do not admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, and rules and regulations promulgated
thereunder, nor do we admit that we are experts with respect to any part of such
Registration Statement within the meaning of the term "experts" as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
MORGAN STANLEY & CO. INCORPORATED
By: /s/ David McCreery
<PAGE>
Exhibit 23.8
[CS First Boston Corporation letterhead]
CONSENT
OF
CS FIRST BOSTON CORPORATION
The Board of Directors
EZ Communications, Inc.
10800 Main Street
Fairfax, Virginia 22030
The Board of Directors
American Radio Systems Corporation
166 Huntington Avenue
Boston, Massachusetts 02116
Members of the Board:
We hereby consent to the inclusion of (1) our opinion letter to the
Board of Directors of EZ Communications, Inc. ("EZ") as Appendix III to the
Registration Statement on Form S-4 of American Radio Systems Corporation
("American") relating to the proposed merger transaction involving EZ and
American, and (ii) references made to our firm and such opinion in such
Registration Statement under the captions entitle "SUMMARY--Opinions of
Financial Advisors" and "BACKGROUND OF THE MERGER--General Background;"
"--Recommendation of the EZ Board; EZ's Reasons for the Merger;" and "--Opinion
of Financial Advisor to EZ." In giving such consent, we do not admit that we are
"experts" for purposes of, the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
CS FIRST BOSTON CORPORATION
BY: /s/ Matthew L. Harris
Name: Matthew L. Harris
Title: Director
New York, New York
November 14, 1996
<PAGE>
EXHIBIT 23.9
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in
the Proxy Statement of American Radio Systems Corporation which is made part of
the Registration Statement (Form S-4 No. 333-15231) and related Prospectus of
American Radio Systems Corporation for the registration of 8,722,848 shares of
its common stock and to the incorporation by reference therein of our report
dated February 12, 1996, with respect to the consolidated financial statements
of EZ Communications, Inc. incorporated by reference in its Annual Report (Form
10-K) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Washington, DC
November 14, 1996
<PAGE>
Exhibit 23.10
November 14, 1996
James H. Duncan, Jr.
Duncan's American Radio
10905 Rooked Stick Lane
Carmel, IN 46032
Dear Jim:
American Radio Systems Corporation plans to file a Registration
Statement in compliance with the Securities Act of 1933, as amended. As part of
that filing we are seeking approval from you to include certain statistics about
our radio stations and their markets that are available in your publications for
which we are subscribed. Please sign in the area provided below providing us
with permission to use this information.
Thank you for your cooperation in this matter.
Sincerely
/s/ Justin D. Benincasa
Justin D. Benincasa
Vice President and Corporate Controller
signed: /s/ James H. Duncan Jr.
Date: November 14, 1996
Names: James H. Duncan Jr.
Title: President
<PAGE>
EXHIBIT 23.11
Patricia O'Donnell
Associate General Counsel
VIA: FEDERAL EXPRESS
November 14, 1996
Joseph L. Winn
Chief Financial Officer
American Radio Systems
116 Huntington Avenue
Boston, Massachusetts 01226
Dear Mr. Winn:
We have received your request in connection with the Intention of
American Radio Systems to file a Registration Statement with the Securities and
Exchange Commission.
We hereby consent to the use of Arbitron's copyrighted and proprietary
data and estimates from the Arbitron Radio Market Reports in the Registration
Statement and the prospectus contained therein provided sourcing information is
clearly disclosed in such documents pursuant to the guidelines on the attached
sheet.
Please sign this letter and return to me to indicate your agreement
with these terms.
Very truly yours,
THE ARBITRON COMPANY
/s/ Patricia O'Donnell
Patricia O'Donnell
Agreed to:
By: /s/ Joseph L. Winn
Date: November 14, 1996
POD
Enclosure
cc: M. Gardella
<PAGE>
