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EXHIBIT 2.2
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, dated as of February 12, 1996, is
among JACOR COMMUNICATIONS, INC., an Ohio corporation ("Parent"), JCAC, INC., a
Florida corporation and a wholly owned subsidiary of Parent ("Acquisition"),
GREAT AMERICAN INSURANCE COMPANY, an Ohio corporation ("Seller A"), AMERICAN
FINANCIAL CORPORATION, an Ohio corporation ("Seller B"), AMERICAN FINANCIAL
ENTERPRISES, INC., a Connecticut corporation ("Seller C"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("Seller D"), THE ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ FOUNDATION, a charitable foundation ("Seller
E") and S. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Seller F"). Seller A, Seller B, Seller C, Seller D,
Seller E and Seller F are sometimes individually referred to herein as a
"Seller" and are sometimes collectively referred to herein as the "Sellers".
WHEREAS, Parent, Acquisition, and Citicasters Inc., a Florida
corporation (the "Company"), are, concurrently with the execution of this
Agreement, entering into an Agreement and Plan of Merger (the "Merger
Agreement"), which provides, among other things, upon the terms and subject to
the conditions thereof, that Acquisition will be merged with and into the
Company in accordance with the Florida Business Corporation Act (the "Merger")
such that each share of Class A Common Stock, par value $.01 per share, of the
Company (the "Shares") issued and outstanding immediately prior to the effective
time of the Merger (other than Shares owned by the Company, Parent, Acquisition
or any direct or indirect subsidiary of the Company, Parent or Acquisition, and
any Shares held in the treasury of the Company) will be converted into the right
to receive the Merger Consideration (as defined in the Merger Agreement);
WHEREAS, each Seller owns the number of Shares (the "Seller's
Shares") set forth on Schedule A hereto opposite the name of such Seller; and
WHEREAS, in order to induce Parent and Acquisition to enter
into the Merger Agreement, each Seller has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, Parent, Acquisition and the Sellers hereby agree as follows.
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Section 1. Representations and Warranties of Sellers. Each
Seller represents and warrants to Parent and Acquisition as follows:
(a) Each of Seller A, Seller B and Seller C is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation.
(b) Each of Seller A, Seller B, Seller C and Seller E has
all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby.
(c) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by the board of directors of each of Seller A,
Seller B, Seller C and Seller E and no other proceedings on the part of any of
Seller A, Seller B, Seller C or Seller E are necessary to authorize this
Agreement or to consummate the transactions so contemplated.
(d) This Agreement has been duly and validly executed and
delivered by each Seller and constitutes a legal, valid and binding agreement of
each Seller enforceable against each Seller in accordance with its terms, except
that the enforceability hereof may be subject to applicable bankruptcy,
insolvency or other similar laws now or hereinafter in effect affecting
creditors' rights generally.
(e) The execution, delivery and performance by the
Sellers of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) contravene or conflict with the Certificate of
Incorporation or By-Laws of any of Seller A, Seller B or Seller C or any
organizational or governing documents of Seller E; (ii) contravene or conflict
with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to any Seller,
any of their respective subsidiaries or any of their respective properties;
(iii) conflict with, or result in the breach or termination of any provision of
or constitute a default (with or without the giving of notice or the lapse of
time or both) under, or give rise to any right of termination, cancellation, or
loss of any benefit to which any Seller or any of its subsidiaries is entitled
under any provision of any agreement, contract, license or other instrument
binding upon such Seller, any of its subsidiaries or any of their respective
properties, or allow the acceleration of the performance of, any obligation of
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any Seller or any of its subsidiaries under any indenture, mortgage, deed of
trust, lease, license, contract, instrument or other agreement to which such
Seller or any of its subsidiaries is a party or by which any Seller or any of
its subsidiaries or any of their respective assets or properties is subject or
bound; or (iv) result in the creation or imposition of any security interests,
liens, claims, pledges, charges, voting agreements or other encumbrances of any
nature whatsoever (collectively, "Liens") on any asset of any Seller or any of
its subsidiaries, except in the case of clauses (ii), (iii) and (iv) for any
such contraventions, conflicts, violations, breaches, terminations, defaults,
cancellations, losses, accelerations and Liens which would not individually or
in the aggregate materially interfere with the consummation of the transactions
contemplated by this Agreement.
(f) As of the date hereof, none of the Sellers and none
of their respective properties is subject to any order, writ, judgment,
injunction, decree, determination or award which would prevent or delay the
consummation of the transactions contemplated hereby.
(g) Each Seller has, and at all times between the date of
this Agreement and the consummation of the Merger such Seller will have, (i)
good and valid title to such Seller's Shares, free and clear of any Liens and
(ii) the right to vote such Seller's Shares.
(h) There are no options or rights to acquire, or any
agreements to which any Seller is a party relating to, any Seller's Shares,
other than this Agreement.
(i) The Seller's Shares described in Schedule A represent
all of the Shares beneficially owned (within the meaning of Rule 13d-3 under the
Exchange Act) by any of the Sellers.
Section 2. Representations and Warranties of Parent and Acquisition.
Each of Parent and Acquisition represents and warrants to the Sellers as
follows:
(a) Each of Parent and Acquisition is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Each of Parent and Acquisition has all necessary
corporate power and authority to execute and deliver this
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Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.
(c) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by the board of directors of each of Parent and
Acquisition and no other corporate proceedings on the part of Parent or
Acquisition are necessary to authorize this Agreement or to consummate the
transactions so contemplated.
(d) This Agreement has been duly and validly executed and
delivered by each of Parent and Acquisition and constitutes a legal, valid and
binding agreement of each of Parent and Acquisition enforceable against each of
Parent and Acquisition in accordance with its terms, except that the
enforceability hereof may be subject to applicable bankruptcy, insolvency, or
other similar laws, now or hereinafter in effect affecting creditors' rights
generally.
Section 3. Negative Covenants of Sellers. Except as provided
for herein or in the Merger Agreement, each Seller agrees not to (either
directly or indirectly):
(a) sell, transfer, pledge, assign, hypothecate or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, assignment,
hypothecation or other disposition of such Seller's Shares (including, without
limitation, through the disposition or transfer of control of another person)
other than to an affiliate of Seller D that agrees to be bound by this
Agreement;
(b) grant any proxies with respect to such Seller's
Shares, deposit such Seller's Shares into a voting trust or enter into a voting
agreement with respect to any of such Seller's Shares; or
(c) take any action which would make any representation
or warranty of any Seller herein untrue or incorrect in any material respect.
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Section 4. No Solicitation. (a) From and after the date of
this Agreement and except as set forth in subsection 0, the Sellers shall not,
and the Sellers shall use their reasonable best efforts to cause the Company not
to, directly or indirectly, (i) solicit, initiate, knowingly encourage, or
participate in discussions or negotiations regarding, any proposals or offers
from any individual, corporation, partnership, limited liability corporation,
joint venture, trust, association, unincorporated organization, other entity,
group or governmental authority ("Person") relating to any Competing Transaction
(as defined in subsection 0) or (ii) furnish to any other Person any nonpublic
information or access to such information with respect to, or otherwise
concerning, any Competing Transaction. The Sellers shall immediately cease and
cause to be terminated any existing discussions or negotiations with any third
parties conducted heretofore with respect to any proposed Competing Transaction.
The Sellers shall promptly disclose to Parent the identity of any Person who
attempts to initiate any discussions contemplating a Competing Transaction.
(b) Notwithstanding anything to the contrary contained in
this Section 0 or in any other provision of this Agreement, until the consents
required by Section 0 have been duly executed and delivered, the Sellers shall
not be required to cause the Company to refrain from (i) participating in
discussions or negotiations with, and, during such period, furnishing
information to, a Person that seeks to engage in discussions or negotiations,
requests information or makes a proposal to acquire the Company pursuant to a
Competing Transaction, if the Company's directors have determined in good faith
that such action is required for the discharge of their fiduciary obligations,
based upon the written advice of independent legal counsel, who may be the
Company's regularly engaged legal counsel (a "Director Duty"); or (ii)
terminating this Agreement and entering into an agreement providing for a
Competing Transaction in accordance with a Director Duty. In the event that the
Sellers participate (directly or indirectly) in discussions or negotiations
with, or furnish information to, a Person that seeks to engage in such
discussions or negotiations, requests information or makes a proposal to acquire
the Company pursuant to a Competing Transaction pursuant to this subsection 0,
then: (i) the Sellers shall immediately disclose to Parent the decision of the
Company's directors; (ii) the identity of the Person; and (iii) copies of all
information or material not previously furnished to Parent or Acquisition which
the Sellers, the Company, or their respective agents provides or causes to be
provided to such Person or any of
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its officers, directors, employees, agents, advisors or representatives.
(c) For the purposes of this Agreement, "Competing
Transaction" shall mean any of the following involving the Company: (i) any
merger, consolidation, share exchange, business combination or other similar
transaction; (ii) any sale, lease, exchange, transfer or other disposition of
all or substantially all of the assets of the Company and its subsidiaries,
taken as a whole, in a single transaction or series of related transactions; or
(iii) any tender offer or exchange offer for Shares.
Section 5. Written Consent.
(a) Prior to the close of business on the thirtieth day
following the date of this Agreement (the "Delivery Date"), unless the Merger
Agreement has been terminated on or prior to the Delivery Date, each Seller will
execute and deliver to the corporate secretary of the Company a written consent
with respect to such Seller's Shares in the form attached hereto as Exhibit A,
which written consent will not be withdrawn or revoked. Such written consents of
the Sellers will constitute the irrevocable written consent of each of the
Sellers with respect to his or its Seller's Shares to the approval and adoption
of the Merger Agreement.
(b) For so long as this Agreement is in effect, in any
meeting of the stockholders of the Company, however called, and in any action by
consent of the stockholders of the Company, each Seller shall vote or cause to
be voted all of such Seller's Shares: (i) against any action or agreement that
would result in a breach in any material respect of any covenant, representation
or warranty or other obligation of any Seller under this Agreement or of the
Company, Parent or Acquisition under the Merger Agreement; (ii) against any
action or agreement that would impede, interfere with or discourage the
transactions contemplated by this Agreement or the Merger Agreement, including,
without limitation: (1) any extraordinary corporate transaction, such as a
merger, reorganization or liquidation involving the Company or any of its
subsidiaries, (2) a sale or transfer of a material amount of assets of the
Company, or any of its subsidiaries or the issuance of securities by the Company
or any of its subsidiaries, (3) any change in the board of directors of the
Company, (4) any change in the present capitalization or dividend policy of the
Company (other than as contemplated by the Merger Agreement) or (5) any other
material change in the Company's corporate structure or business; and (iii) in
favor of any action or agreement that would
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further the consummation of the transactions contemplated by this Agreement or
the Merger Agreement.
Section 6. Registration Agreement. Prior to the closing of the
Merger, the parties will enter into an agreement providing for shelf
registration of resale of the Warrants and the Warrant Shares (each as defined
in the Merger Agreement) with terms and conditions customary for transactions
that are similar to the Merger.
Section 7. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 8. Expenses. Each party shall bear its own expenses
and costs in connection with this Agreement and the transactions contemplated
hereby.
Section 9. Amendment; Assignment. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns and shall be assignable by the parties hereto;
provided, however, that this Agreement shall not be assignable by any Seller
without the prior written consent of Parent other than to an affiliate of Seller
D that agrees to be bound by this Agreement. No assignment hereunder will
relieve any party to this Agreement of its obligations hereunder.
Section 10. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto and its
successors and permitted assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 11. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested), to the other party as follows:
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(a) If to Parent or Acquisition, to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Jacor Communications, Inc.
1300 PNC Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇
1900 Fifth Third Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Sellers, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
American Financial Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 12. Reasonable Best Efforts. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things reasonably necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement.
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Section 13. Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of Florida, without regard
to the principles of conflicts of law thereof.
Section 14. Termination.
(a) This Agreement shall terminate upon termination of the
Merger Agreement without the consummation of the Merger. No such termination
shall relieve any party from liability for any breach of this Agreement.
(b) If (i) the Merger Agreement is terminated pursuant to
Sections 8.1(f), 8.1(g) or 8.1(h) of that Agreement and (ii) a transaction is
consummated within eighteen months after the termination of the Merger Agreement
that results (1) in the sale, exchange, conversion or other disposition (by
merger or otherwise) of some or all of the Shares owned by Seller D or Seller F
(2) a payment (by dividend or otherwise) to Seller D or Seller F following a
sale of all or substantially all of the assets of the Company, a
recapitalization, a restructuring or other similar event (in the case of (1) or
(2), an "Other Transaction"), Seller D and Seller F shall, immediately after the
consummation of the Other Transaction, pay to Parent a sum (the "Compensating
Payment") equal to the number of Shares sold, exchanged, converted, or otherwise
disposed or with respect to which Seller D or Seller F received a payment, in
the Other Transaction multiplied by one half of the Per Share Difference. The
Per Share Difference shall equal (x) the fair market value, valued as of the
time the Other Transaction is consummated, of the consideration per Share
received by Seller D or Seller F in the Other Transaction less (y) the expected
fair market value per Share, valued as of December 1, 1996, that Seller D or
Seller F would have received in the Merger. If Seller D, Seller F and Parent
cannot agree on the amount of the Compensating Payment, Seller D and Seller F
shall pay Parent immediately a sum equal to what Seller D and Seller F believe
the Compensating Payment to be (the "Immediate Payment") plus interest at 9% per
year on the Immediate Payment for the period between the time the Other
Transaction is consummated and the time the Immediate Payment is made, and the
final amount of the Compensating Payment shall be determined in accordance with
the commercial arbitration rules of the American Arbitration Association by an
arbitrator or arbitrators appointed in accordance with such rules. Such
arbitration shall take place in Cincinnati, Ohio, and judgment upon any award
rendered in such arbitration may be entered in any court of appropriate
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jurisdiction; the parties hereto consent to the entry of such judgment and agree
that no appeal shall be taken therefrom. Parent shall be entitled to receive
immediately the difference between the final amount of the Compensating Payment
determined by the arbitrators and the Immediate Payment (the "Difference") and
interest at 9% per year on the Difference for the period between the date the
Competing Transaction is consummated and the date the Difference is paid to
Parent.
In no event shall Parent be required to make any payment under this Agreement.
(c) This Section 0 shall survive the termination of this
Agreement.
Section 15. Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity and enforceability of the other
provisions hereof. If any provision of this Agreement, or the application
thereof to any person or entity or any circumstance, is invalid or
unenforceable, (a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid and unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
Section 16. Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Section 17. Descriptive Headings. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
Section 18. Certain Definitions. For purposes of this
Agreement, the term:
(a) "affiliate" of a person means a person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the first mentioned person;
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(b) "control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management
policies of a person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise;
(c) "knowledge" means knowledge after reasonable inquiry;
(d) "person" means an individual, corporation, partnership,
association, trust, unincorporated organization, other entity or group (as
defined in Section 13(d)(3) of the Exchange Act); and
(e) "subsidiary" or "subsidiaries" of any person means any
corporation, partnership, joint venture or other legal entity of which such
person (either alone or through or together with any other subsidiary), owns,
directly or indirectly, 50% or more of the stock or other equity interests the
holder of which is generally entitled to vote for the election of the board of
directors or other governing body of such corporation, partnership, joint
venture or other legal entity.
Section 19. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its representatives thereunto duly authorized, all as
of the day and year first above written.
GREAT AMERICAN INSURANCE COMPANY
By:
---------------------------
Name:
Title:
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AMERICAN FINANCIAL CORPORATION
By:
---------------------------
Name:
Title:
AMERICAN FINANCIAL ENTERPRISES, INC.
By:
---------------------------
Name:
Title:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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THE ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ FOUNDATION
By:
-------------------------
Name:
Title:
S. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
S. ▇▇▇▇▇ ▇▇▇▇▇▇▇
JACOR COMMUNICATIONS, INC.
By:
--------------------------
Name:
Title:
JCAC, INC.
By:
--------------------------
Name:
Title:
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SCHEDULE A
TO THE
STOCKHOLDERS AGREEMENT
Capitalized terms used in this Schedule A and not otherwise defined in
this Schedule A have the respective meanings assigned to such terms in the
attached Stock Purchase Agreement.
NAME OF EACH SELLER NUMBER OF SHARES
------------------- ----------------
GREAT AMERICAN INSURANCE COMPANY 3,455,698 Shares
AMERICAN FINANCIAL CORPORATION 1,500,000 Shares
AMERICAN FINANCIAL ENTERPRISES, INC. 2,611,191 Shares
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 3,257,913 Shares
THE ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ FOUNDATION 170,253 Shares
S. ▇▇▇▇▇ ▇▇▇▇▇▇▇ 85,500 Shares
============================= =======================
Total 11,080,555 Shares
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EXHIBIT A
WRITTEN CONSENT
OF A SHAREHOLDER OF
CITICASTERS, INC.
PURSUANT TO SECTION 607.0704
OF THE FLORIDA BUSINESS CORPORATION ACT
The undersigned, being the holder of shares of Class A Common
Stock, par value $.01 per share, of Citicasters, Inc., a Florida corporation
(the "Company"), by executing this written consent, hereby approves the
Agreement and Plan of Merger (the "Merger Agreement") dated as of February 12,
1996 among the Company, Jacor Communications, Inc., an Ohio corporation
("Acquiror") and JCAC, Inc., a Florida corporation and wholly owned subsidiary
of Acquiror ("Acquisition") and thereby approves the adoption by the surviving
corporation in the merger contemplated by the Merger Agreement of the Articles
of Incorporation and By-Laws of Acquisition.
IN WITNESS WHEREOF, the undersigned has executed this written consent
as of the date written below.
Date:
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[Shareholder]
-----------------------
[Shareholder]
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