4,560,000 Shares
JACOR COMMUNICATIONS, INC.
Common Stock
($.01 Par Value Per Share)
UNDERWRITING AGREEMENT
February 3, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN SACHS & CO.
MORGAN STANLEY & CO.
INCORPORATED
SMITH BARNEY INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Jacor Communications, Inc., a Delaware corporation (the "Company"),
and Jacor Communications Company ("JCC"); Broadcast Finance, Inc.; Cine
Films, Inc.; Cine Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors
II, Ltd.; Cine Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.;
Citicasters Co.; GACC-N26LB, Inc.; Great American Merchandising Group, Inc.;
Great American Television Productions, Inc.; Inmobilaria Radial, S.A. de
C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.;
Jacor Broadcasting of Charleston, Inc.; Jacor Broadcasting of Colorado, Inc.;
Jacor Broadcasting of Denver, Inc.; Jacor Broadcasting of Florida, Inc.;
Jacor Broadcasting of Kansas City, Inc.; Jacor Broadcasting of Las Vegas,
Inc.; Jacor Broadcasting of Las Vegas II; Jacor Broadcasting of Louisville,
Inc.; Jacor Broadcasting of Louisville II, Inc.; Jacor Broadcasting of Salt
Lake City, Inc.; Jacor Broadcasting of Salt Lake City II, Inc.; Jacor
Broadcasting of St. Louis, Inc.; Jacor
Broadcasting of San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor
Broadcasting of Tampa Bay, Inc.; Jacor Broadcasting of Toledo, Inc.; Jacor
Broadcasting of Youngstown, Inc.; Jacor Cable, Inc.; Jacor Licensee of
Charleston, Inc.; Jacor Licensee of Kansas City, Inc., Jacor Licensee of Las
Vegas, Inc.; Jacor Licensee of Las Vegas II, Inc.; Jacor Licensee of
Louisville, Inc.; Jacor Licensee of Louisville II, Inc.; Jacor Licensee of
Salt Lake City, Inc.; Jacor Licensee of Salt Lake City II, Inc.;
Jacor/Premiere Holding, Inc.; JBSL, Inc.; Location Productions, Inc.;
Location Productions II, Inc.; Multiverse Acquisition Corp.; Noble Broadcast
Center, Inc.; Noble Broadcast Group, Inc.; Noble Broadcast Holdings, Inc.;
Noble Broadcast Licenses, Inc.; Noble Broadcast of San Diego, Inc.; Nobro,
S.C.; Nova Marketing Group, Inc.; NSN Network Services, Ltd.; Premiere Radio
Networks, Inc.; Radio-Active Media, Inc.; Sports Radio Broadcasting, Inc.;
Sports Radio, Inc.; The Sy Fischer Company Agency, Inc.;VTTV Productions; and
WHOK, Inc. each a direct or indirect subsidiary of the Company or any
successor entity, whether by merger, consolidation, change of name or
otherwise (collectively, the "Subsidiaries" and together with the Company,
the "Registrants") confirm their agreement with the several Underwriters
listed in Schedule I hereto (the "Underwriters") for whom Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJ"), Goldman, Sachs & Co., Morgan Stanley
& Co. Incorporated and Smith Barney Inc. (collectively, the
"Representatives") have been duly authorized to act as representatives as
follows:
1. THE SHARES. Subject to the terms and conditions herein set
forth, the Company proposes to sell to the Underwriters an aggregate of
4,560,000 shares (the "Firm Shares") of common stock, $.01 par value per
share, of the Company (the "Common Stock"). The Company also proposes to
sell to the several Underwriters an aggregate of not more than 513,000
additional shares of Common Stock (the "Additional Shares"), if requested by
the Underwriters as provided in Section 3 hereof. The Firm Shares and the
Additional Shares are herein collectively called the "Shares".
The Shares are being issued and sold to fund, in part, the
consideration to be paid by the Company under the Nationwide Agreement (as
defined below). Alternatively and pending such uses, the Company intends to use
the net proceeds for general corporate purposes, including acquisitions of other
broadcast properties and broadcast related businesses and to repay in part
outstanding indebtedness under the revolving credit component of the Credit
Facility (defined below).
The Pending Transactions (as such term is defined in the Prospectus)
include, among other things, the acquisition (the "Nationwide Acquisition") of
17 radio stations (the "Nationwide Stations") from Nationwide (as defined below)
pursuant to an Agreement of Sale (the "Nationwide Agreement") dated as of
December 19, 1997, by
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and among JCC, Citicasters Co. and Nationwide Communications, Inc.,
Nationwide Mutual Insurance Company, Employers Insurance of Wasau, San Diego
Lotus Corp. and The Beak and Wire Corporation (collectively, "Nationwide").
Prior to or concurrently with the issuance and sale of the Shares,
the Company and JCC, as applicable will (i) issue and sell liquid yield
option notes in the aggregate principal amount at maturity of $383,573,000
(excluding $43,344,000 aggregate principal amount at maturity subject to an
over-allotment option) due 2018 (the "LYONs"); and (ii) issue and sell $120.0
million aggregate principal amount of 8% Senior Subordinated Notes due 2010
(the "Sub Notes"). This Underwriting Agreement and all agreements and
documents executed in connection with the Pending Transactions and all
documents and agreements related to each of the offering of the LYONs (the
"LYONs Offering") and the offering of the Sub Notes (the "Sub Notes
Offering") are collectively referred to herein as the "Transaction
Documents."
2. REGISTRATION STATEMENT AND PROSPECTUS. The Registrants have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a "shelf" registration statement on Form S-3 (No.
333-40127), including a prospectus, relating to debt securities, preferred
stock, depository shares and common stock, and will promptly file with the
Commission a prospectus supplement specifically relating to the Shares
pursuant to Rule 424 under the Act. The registration statement, as amended
at the time it became effective or, if a post-effective amendment is filed
with respect thereto, as amended by such post-effective amendment at the time
of its effectiveness, including in each case, all documents incorporated or
deemed incorporated by reference therein, if any, all financial statements
and exhibits, and the information, if any, contained in a prospectus or term
sheet subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be a part of the registration statement at the time of
its effectiveness pursuant to Rule 430A or Rule 434 under the Act (as
applicable), and any additional registration statement relating to the
issuance of additional shares of Common Stock filed pursuant to Rule 462(b)
under the Act, is hereinafter referred to as the "Registration Statement";
and the prospectus, constituting a part of the Registration Statement at the
time it became effective, or such revised prospectus as shall be provided to
the Underwriters for use in connection with the offering of the Shares that
differs from the prospectus on file with the Commission at the time the
Registration Statement became effective including any prospectus supplement,
and including, in each case, all documents incorporated or deemed
incorporated by reference therein, if any, whether or not filed with the
Commission pursuant to Rule 424(b) under the Act, and including any
preliminary prospectus supplement subject to completion and any term
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sheet meeting the requirements of Rule 434(c), filed pursuant to Rule 424(b),
in the form used to confirm sales of the Shares, are hereinafter referred to
collectively as the "Prospectus."
3. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at a price per share of $48.48 (the "Purchase
Price") the aggregate number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Company
agrees to issue and sell to the Underwriters up to 513,000. Additional Shares,
(ii) the Underwriters shall have a right to purchase, severally and not jointly,
from time to time, up to an aggregate of 513,000. Additional Shares at the
Purchase Price. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as DLJ may determine) which bears the same proportion to the total number
of Additional Shares to be purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the total
number of Firm Shares.
The Company hereby agrees, and the Company shall, concurrently with
the execution of this Agreement, deliver an agreement executed by (i) each of
the directors and officers of the Company and (ii) Zell/Chilmark Fund, L.P.,
pursuant to which each such person will agree, not to, offer to sell, sell,
distribute, grant any option to purchase or otherwise dispose of, directly or
indirectly, any shares of Common Stock, or any securities convertible into or
exercisable or exchangeable for, shares of Common Stock owned by them, for a
period of 120 days after the date of the prospectus supplement, dated
February 3, 1998 (the "Prospectus Supplement"), except (A) with the prior
written consent of DLJ, (B) pursuant to this Agreement, (C) pursuant to stock
options or stock option plans referred to in the Prospectus or (D) in the
case of the Company, in connection with the issuance of shares of Common
Stock in connection with the conversion of the LYONs due 2011 (as defined
herein) and the LYONs and acquisition transactions in which the recipients of
such Shares are restricted from selling such Shares until after the
expiration of 120 days from the date of the Prospectus Supplement.
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In addition, the Company agrees it will inform certain former
shareholders of Regent Communications, Inc. who hold shares of the Company's
Common Stock and/or warrants for the Company's Common Stock that they may not
sell any of such shares or warrants pursuant to the shelf registration statement
currently in effect providing for the registration and distribution of such
shares and warrants for a period of 30 days from the date of the Prospectus.
4. DELIVERY AND PAYMENT. Delivery to you of and payment for the
Firm Shares shall be made at 9:00 A.M., New York City time, on February 9,
1998 (the "Closing Date"), at such place as DLJ shall reasonably designate.
The Closing Date and the location of delivery of the Firm Shares may be
varied by agreement between DLJ and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as DLJ shall
designate, at 9:00 A.M., New York City time, on such date or dates
(individually, an "Option Closing Date"), which may be the same as the Closing
Date but shall in no event be earlier than the Closing Date, as shall be
specified in a written notice from DLJ to the Company of the Underwriters'
determination to purchase a number, specified in said notice, of Additional
Shares. Any such notice may be given at any time not later than 30 days after
the date of this Agreement. Any Option Closing Date and the location of
delivery of and payment for the Additional Shares may be varied by agreement
among DLJ and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as DLJ shall request in writing not later than two
full business days prior to the Closing Date, or the applicable Option Closing
Date, as the case may be, and shall be made available to you at the offices of
DLJ (or such other place as shall be acceptable to you) for inspection not later
than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date, or the applicable Option Closing Date, as the case may be,
with any transfer taxes payable upon initial issuance thereof duly paid by the
Company, for the respective accounts of the Underwriters against payment of the
Purchase Price by wire transfer of Federal or other funds immediately available
in New York City, to the order of the Company.
5. AGREEMENTS OF THE REGISTRANTS. The Registrants agree with
each of you that:
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(a) The Registrants will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under the
Act, a post-effective amendment to the Registration Statement, in each
case as soon as practicable after the execution and delivery of this
Agreement, and will use their best efforts to cause their Registration
Statement or such post-effective amendment to become effective at the
earliest possible time. The Registrants will comply fully and in a timely
manner with the applicable provisions of Rule 424 and Rule 430A and, if
applicable, Rule 462, under the Act.
(b) The Registrants will advise you promptly and, if requested by
any of you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent for
filing pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission or any state securities
commission or regulatory authority that relate to the Registration
Statement or requests by the Commission or any state securities commission
or regulatory authority for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purpose by the Commission or any
state securities commission or any other regulatory authority, and (iv) of
the happening of any event during such period as in your reasonable
judgment you are required to deliver a prospectus in connection with sales
of the Shares by you which makes any statement of a material fact made in
the Registration Statement untrue or which requires the making of any
additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein
not misleading or that makes any statement of a material fact made in the
Prospectus (as amended or supplemented from time to time) untrue or which
requires the making of any additions to or changes in the Prospectus (as
amended or supplemented from time to time) in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Company shall use its best efforts to prevent the issuance
of any stop order or order suspending the qualification or exemption of the
Shares under any state securities or Blue Sky laws, and, if at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption of the
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Shares under any state securities or Blue Sky laws, the Company shall use
every reasonable effort to obtain the withdrawal or lifting of such order
at the earliest possible time.
(c) The Registrants will furnish to you without charge two (2) signed
copies (plus one (1) additional signed copy to your legal counsel) of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may reasonably
request.
(d) The Registrants will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus, of which
you shall not previously have been advised and provided a copy within two
business days prior to the filing thereof (or such reasonable amount of
time as is necessitated by the exigency of such amendment or supplement) or
to which you shall reasonably object; and the Registrants will prepare and
file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution of
the Shares by you, and will use their best efforts to cause any amendment
to the Registration Statement to become effective as promptly as possible.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period in your reasonable judgment
as a prospectus is required to be delivered in connection with sales of the
Shares by you, it will furnish to each Underwriter and dealer without
charge as many copies of the Prospectus (and of any amendment or supplement
to the Prospectus) as such Underwriters and dealers may reasonably request.
The Registrants consent to the use of the Prospectus and any amendment or
supplement thereto by any Underwriter or any dealer, both in connection
with the offering or sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act or the Exchange Act to
be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the Shares by
you any event shall occur as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing as of the date
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the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with any law, the Registrants will
promptly prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as
so amended or supplemented, will not, in the light of the circumstances
existing as of the date the Prospectus is so delivered, be misleading,
and will comply with applicable law, and will furnish to each Underwriter
and dealer without charge such number of copies thereof as such
Underwriters and dealers may reasonably request.
(g) Prior to any public offering of the Shares, the Company will
cooperate with you and your counsel in connection with the registration or
qualification of the Shares for offer and sale by you under the state
securities or Blue Sky laws of such jurisdictions as you may request
(provided, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to take
any action that would subject it to general consent to service of process
in any jurisdiction in which it is not now so subject). The Company will
continue such qualification in effect so long as required by law for
distribution of the Shares.
(h) The Company will make generally available to its security holders
as soon as reasonably practicable a consolidated earning statement covering
a period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder, and to
advise you in writing when such statement has been so made available.
(i) The Registrants will timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the
Exchange Act.
(j) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed, and (ii) from time to time such other information concerning the
Company as you may request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, the Registrants will pay and
be
8
responsible for all costs, expenses, fees and taxes in connection with
or incident to (i) the printing, processing, filing, distribution and
delivery under the Act or the Exchange Act of the Registration Statement,
each preliminary prospectus, the Prospectus and all amendments or
supplements thereto, (ii) the printing, processing, execution, distribution
and delivery of this Agreement, any memoranda describing state securities
or Blue Sky laws and all other agreements, memoranda, correspondence and
other documents printed, distributed and delivered in connection with the
offering of the Shares, (iii) the registration with the Commission and the
issuance and delivery of the Shares, (iv) the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky laws of
the jurisdictions referred to in paragraph (g) above (including, in each
case, the fees and disbursements of counsel relating to such registration
or qualification and memoranda relating thereto and any filing fees in
connection therewith), (v) furnishing such copies of the Registration
Statement, Prospectus and preliminary prospectus, and all amendments and
supplements to any of them, as may be reasonably requested by you, (vi)
filing, registration and clearance with the NASD in connection with the
offering of the Shares (including any filing fees in connection therewith
and the fees and disbursements of counsel relating thereto), (vii) any
"qualified independent underwriter" as required by Section 2720 of the
Conduct Rules of the NASD (including fees and disbursements of counsel for
such qualified independent underwriter), (viii) the printing, processing,
execution, distribution and delivery of the Transaction Documents and all
other agreements, memoranda, correspondence and other documents, printed,
distributed and delivered in connection with the Transaction Documents and
(ix) the performance by the Registrants of their other obligations under
this Agreement, the cost of their personnel and other internal costs, the
cost of printing and engraving the certificates representing the Shares,
and all expenses and taxes incident to the sale and delivery of the Shares
to you.
(l) The Company will use the proceeds from the sale of the Shares in
the manner described in the Prospectus under the caption "Use of Proceeds."
(m) The Company will cause the Shares to be quoted on the Nasdaq
National Market and will use its reasonable best efforts to maintain such
quotation while any of the Shares are outstanding.
(n) The Registrants will use their best efforts to do and perform all
things required to be done and performed under this Agreement by them prior
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to or after the Closing Date and to satisfy all conditions precedent on
their part to the delivery of the Shares.
(o) The Company will timely complete all required filings and
otherwise comply fully in a timely manner with all provisions of the
Exchange Act, and will file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14(a) or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of the Prospectus is required in connection with the offer or
sale of the Shares.
(p) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date and the latest applicable
Option Closing Date, as the case may be, except as described under
"Transactions" in the Prospectus with respect to the Pending Transactions
and under "Prospectus Supplement Summary-Recent Developments" with respect
to certain other potential transactions, there will be no transactions
entered into by the Company or any of its Subsidiaries which are material
with respect to the Company or any of the Subsidiaries, respectively, taken
individually or as a whole, as determined in accordance with the provisions
of Rule 3-05 of Regulation S-X or other standards for materiality as may be
agreed upon by the Company and the Underwriters and there will be no
dividend or distribution of any kind declared, paid or made by the Company
on any class of capital stock or other equity interests.
6. REPRESENTATIONS AND WARRANTIES. The Registrants represent and
warrant to each of you that:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus (if
different) and at the Closing Date, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date of
any such supplements or amendments and at the Closing Date contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements
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in or omissions from the Registration Statement or the Prospectus (or any
supplement or amendment to them) made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by or on behalf of any Underwriter through DLJ expressly for use
therein. The Company acknowledges for all purposes under this Agreement
that the statements with respect to price and underwriting discount and
the last paragraph all as set forth on the cover page and in paragraphs
three, seven and eight under the caption "Underwriting" in the Prospectus
(or any amendment or supplement) constitute the only written information
furnished to the Company by DLJ expressly for use in the Registration
Statement or the Prospectus (or any amendment or supplement to them) and
that the Underwriters shall not be deemed to have provided any other
information (and therefore are not responsible for any such statement
or omission).
(b) Any term sheet and prospectus subject to completion provided by
the Company to the Underwriters for use in connection with the offering and
sale of the Shares pursuant to Rule 434 under the Act together are not
materially different from the Prospectus included in the Registration
Statement.
(c) Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each Registration
Statement filed pursuant to Rule 462(b) under the Act, if any, complied
when so filed in all material respects with the Act.
(d) The Company and each of its Subsidiaries has been duly organized,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of organization and has the requisite corporate power and
authority to carry on its business as it is currently being conducted, to
own, lease and operate its properties and, as applicable, to authorize the
offering of the Shares, to execute, deliver and perform this Agreement, and
to issue, sell and deliver the Shares, and to execute, deliver and perform
the Transaction Documents, as applicable, and each is duly qualified and is
in good standing as a foreign corporation authorized to do business in each
jurisdiction where the operation, ownership or leasing of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified could not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the respective
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of each of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect").
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(e) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each Subsidiary have been duly and validly
authorized and issued, and all of the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or through
Subsidiaries, by the Company and, upon completion of the transactions
contemplated by the Transaction Documents, substantially all of the assets
of the Nationwide Stations (other than as described in the Prospectus) will
be owned directly or through Subsidiaries, by the Company. All such shares
of capital stock are fully paid and nonassessable, and are owned free and
clear of any security interest, mortgage, pledge, claim, lien or
encumbrance (each, a "Lien"), except for Liens arising under the Amended
and Restated Credit Agreement, dated as of September 16, 1997, by and among
The Chase Manhattan Bank, as Administrative Agent, Banque Paribas, as
Documentation Agent, and Bank of America, Illinois, as Syndication Agent
(the "Credit Facility".) There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or
Liens related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other ownership interest in,
any Subsidiary.
(f) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"; all the
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and not subject to any
preemptive or similar rights; the Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
fully paid and nonassessable; the capital stock of the Company, including
the Common Stock, conforms in all material respects to all statements
relating thereto in the Prospectus and the Registration Statement; and the
issuance of the Shares by the Company will not be subject to preemptive or
other similar rights.
(g) None of the Company or any of the Subsidiaries and is in
violation of their respective charters or bylaws or in default in the
performance of any bond, debenture, note or any other evidence of
indebtedness or any indenture, mortgage, deed of trust or other contract,
lease or other instrument to which the Company or any of the Subsidiaries
is a party or by which any of them is bound, or to which any of the
property or assets of the Company or any of the Subsidiaries is subject.
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(h) The Transaction Documents have been duly authorized and validly
executed and delivered by the Registrants and constitute valid and legally
binding agreements of the Registrants, as applicable, enforceable against
the Registrants, as applicable, in accordance with their terms (assuming,
in the case of each of the Transaction Documents, the due execution and
delivery thereof by each party thereto).
(i) The execution and delivery of this Agreement by the Registrants,
the issuance and sale of the Shares, the performance of this Agreement and
the consummation of the transactions contemplated by this Agreement and the
execution and delivery of the Transaction Documents by each of the
Registrants, as applicable, and the consummation of the Pending
Transactions will not (1) conflict with or result in a breach or violation
of any of the respective charters or bylaws of the Company or any of the
Subsidiaries or any of the terms or provisions of, or (2) constitute a
default or cause an acceleration of any obligation under or result in the
imposition or creation of (or the obligation to create or impose) a Lien
with respect to, any bond, note, debenture or other evidence of
indebtedness or any indenture, mortgage, deed of trust or other agreement
or instrument to which the Company or any of the Subsidiaries is a party or
by which it or any of them is bound, or to which any properties of the
Company or any of the Subsidiaries or is or may be subject, or (3)
contravene any order of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of their
properties, or violate or conflict with any statute, rule or regulation or
administrative or court decree applicable to the Company or any of the
Subsidiaries or any of their respective properties.
(j) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries or Nationwide with respect
to the Nationwide Stations or any of their respective properties, which is
required to be disclosed in the Registration Statement or the Prospectus,
or which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect or which could reasonably be
expected to materially and adversely affect the consummation of this
Agreement or the transactions contemplated hereby or the consummation of
the Transaction Documents or the Pending Transactions, and to the best of
the Company's knowledge, no such proceedings are contemplated or
threatened. No contract or document of a character required to be
described in the Registration Statement or the
13
Prospectus or to be filed as an exhibit to the Registration Statement is
not so described or filed.
(k) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Shares, suspends the effectiveness
of the Registration Statement, prevents or suspends the use of any
preliminary prospectus or suspends the sale of the Shares in any
jurisdiction referred to in Section 4(g) hereof; no injunction, restraining
order or order of any nature by a Federal or state court of competent
jurisdiction has been issued with respect to the Company or any of the
Subsidiaries which would prevent or suspend the issuance or sale of the
Shares, the effectiveness of the Registration Statement, or the use of any
preliminary prospectus in any jurisdiction referred to in Section 4(g)
hereof; no action, suit or proceeding is pending against or, to the best
of the Company's knowledge, threatened against or affecting the Company or
any of the Subsidiaries before any court or arbitrator or any governmental
body, agency or official, domestic or foreign, which, if adversely
determined, would materially interfere with or adversely affect the
issuance of the Shares or in any manner draw into question the validity
of the Transaction Documents; and every request of the Commission or any
securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) has been complied with in all material respects.
(l) (i) None of the Company, any of the Subsidiaries and Nationwide
with respect to the Nationwide Stations is in violation of any Federal,
state or local laws and regulations relating to pollution or protection of
human health or the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata),
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of toxic or hazardous
substances, materials or wastes, or petroleum and petroleum products
("Materials of Environmental Concern"), or otherwise relating to the
protection of human health and safety, or the storage, disposal, transport
or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations, except
to the extent that any such violation could not have a Material Adverse
Effect or otherwise require disclosure in the Prospectus; and (ii) to the
best knowledge of the Company and any of the Subsidiaries, after due
inquiry, (A) none of the Company, any of the Subsidiaries, Nationwide
with respect to the Nationwide Stations and any of the other parties to
the Transaction Documents (the "Pending
14
Transaction Parties") with respect to the properties and radio stations
to be purchased or sold pursuant to the Transaction Documents (the
"Pending Properties") has received any communication (written or oral),
whether from a governmental authority or otherwise, alleging any such
violation or noncompliance, and there are no circumstances, either past,
present or that are reasonably foreseeable, that may lead to such
violation in the future, (B) there is no pending or threatened claim,
action, investigation or notice (written or oral) by any person or
entity alleging potential liability for investigatory, cleanup, or
governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned or operated by the Company, any of the
Subsidiaries, Nationwide with respect to the Nationwide Stations, and the
Pending Transaction Parties with respect to the Pending Properties, now
or in the past, or (y) circumstances forming the basis of any violation,
or alleged violation, of any Environmental Law (collectively,
"Environmental Claims") that could have a Material Adverse Effect or
otherwise require disclosure in the Prospectus, and (C) there are no past
or present actions, activities, circumstances, conditions, events or
incidents, that could form the basis of any Environmental Claim against
the Company, any of the Subsidiaries, Nationwide with respect to the
Nationwide Stations, and the Pending Transaction Parties with respect
to the Pending Properties, or against any person or entity whose
liability for any Environmental Claim the Company, any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations, and the Pending
Transaction Parties with respect to the Pending Properties, have retained
or assumed either contractually or by operation of law. In the ordinary
course of its business, each of the Company and the Subsidiaries and
Nationwide with respect to the Nationwide Stations conducts a periodic
review of the effect of Environmental Laws on its business, operations
and properties in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties); on the basis of such review, the Company
and the Subsidiaries, have reasonably concluded that such associated costs
and liabilities could not have a Material Adverse Effect.
(m) None of the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations, and to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
violated
15
any Federal, state or local law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable wage or hour laws,
nor any provisions of the Employee Retirement Income Security Act of 1974
("ERISA") or the rules and regulations promulgated thereunder, nor has the
Company or any of the Subsidiaries or Nationwide with respect to the
Nationwide Stations or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, engaged in any
unfair labor practice, which in each case described in this sentence could
reasonably be expected to result, singly or in the aggregate, in a Material
Adverse Effect. There is (i) no significant unfair labor practice
complaint pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, before the National Labor Relations Board or any state or
local labor relations board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage pending against the Company or any of its Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
the Company or any of the Subsidiaries, Nationwide with respect to the
Nationwide Stations, or the Pending Transaction Parties with respect to the
Pending Properties and (iii) to the best knowledge of the Company, no union
representation question existing with respect to the employees of the
Company or any of the Subsidiaries, or the Pending Transaction Parties with
respect to the Pending Properties, and, to the best knowledge of the
Company, no union organizing activities are taking place, except (with
respect to any matter specified in clause (i), (ii) or (iii) above, singly
or in the aggregate) such as could not have a Material Adverse Effect.
(n) The Company, each of its Subsidiaries and Nationwide with respect
to the Nationwide Stations each have good and marketable title, free and
clear of all Liens, to all property and assets described in the
Registration Statement as being owned by it, except for (i) Liens pursuant
to the Credit Facility, (ii) Liens on general office equipment which
are not material to the Company's operations and (iii) Liens on the
Nationwide Stations which will be released upon
16
consummation of the Nationwide Acquisition. All
leases to which the Company, the Subsidiaries or Nationwide with respect to
the Nationwide Stations are a party are valid and binding and no default
has occurred or is continuing thereunder and the Company, each of its
Subsidiaries and Nationwide with respect to the Nationwide Stations enjoy
peaceful and undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not materially
interfere with the use made by the Company or any such Subsidiary or
Nationwide with respect to the Nationwide Stations.
(o) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, E.F.M. Media Management, Inc., E.F.M. Publishing,
Inc., PAM Media, Inc., Archon Communications, Inc., Synergy Broadcast
Investment Enterprises, L.L.C., Worldstar, Inc., Multiverse Networks
L.L.C., Shanahan Broadcasting, Inc., (collectively, the "C&L Audited
Companies"), Nationwide, Premiere and Jacor Broadcasting of Youngstown,
Inc. filed, to be filed or incorporated by reference with the Commission
as part of the Registration Statement and the Prospectus are independent
public accountants with respect to the Company, the Subsidiaries, the C&L
Audited Companies, Premiere, Nationwide and Jacor Broadcasting of
Youngstown, Inc. as required by the Act. The consolidated historical and
PRO FORMA financial statements, together with related schedules and notes,
set forth in the Prospectus and the Registration Statement comply as to
form in all material respects with the requirements of the Act. Such
historical financial statements fairly present the consolidated financial
position of the Company, the Subsidiaries, the C&L Audited Companies,
Premiere, Nationwide and Jacor Broadcasting of Youngstown, Inc. at the
respective dates indicated and the results of their operations and their
cash flows for the respective periods indicated, in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout such periods. Such PRO FORMA financial statements have been
prepared on a basis consistent with such historical statements, except for
the PRO FORMA adjustments specified therein, and give effect to
assumptions made on a reasonable basis and present fairly the historical
and proposed transactions contemplated by the Prospectus and the
Transaction Documents. The other financial and statistical information
and data included in the Prospectus and in the Registration Statement,
historical and PRO FORMA, are, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company, the C&L Audited
Companies, Premiere, Nationwide and Jacor Broadcasting of Youngstown, Inc.
17
(p) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company, any of the Subsidiaries or Nationwide
with respect to the Nationwide Stations have incurred any liabilities or
obligations, direct or contingent, which are material to the Company and
the Subsidiaries taken as a whole, nor entered into any transaction not
in the ordinary course of business and there has not been, singly or in
the aggregate, any material adverse change, or any development which could
reasonably be expected to involve a material adverse change, in the
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company and the Subsidiaries taken
as a whole (a "Material Adverse Change").
(q) All tax returns required to be filed by the Company and any of
the Subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without penalty or interest.
(r) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in
connection with the transactions contemplated by the Transaction
Documents, except such as may (i) be required by the NASD, (ii) are
disclosed in the Prospectus or (iii) have been obtained and made under
the Act, the Exchange Act, the Trust Indenture Act of 1939, as amended
(the "TIA") or state securities or "Blue Sky" laws or regulations.
Neither the Company nor any of its affiliates is presently doing
business with the government of Cuba or with any person or affiliate
located in Cuba.
(s) (i) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
any of the Pending Transaction Parties with respect to the Pending
Properties, has all certificates, consents, exemptions, orders, permits,
licenses, authorizations, or other approvals (each, an "Authorization") of
and from, and has made all declarations and filings with, all Federal,
state, local and other governmental authorities (including the Federal
Communications Commission ("FCC")), all self-regulatory organizations
and all courts and other tribunals, necessary or required to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent that the
failure to obtain or file could not, singly or in the aggregate,
reasonably be
18
expected to have a Material Adverse Effect, (ii) all such Authorizations
are valid and in full force and effect, (iii) each of the Company, the
Subsidiaries and Nationwide with respect to the Nationwide Stations and,
to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, is in compliance in all material
respects with the terms and conditions of all such Authorizations and
with the rules and regulations of the regulatory authorities and
governing bodies having jurisdiction with respect thereto and (iv) each
commercial radio broadcast station identified in the Prospectus as owned
and operated by any of the Company, the Subsidiaries or Nationwide with
respect to the Nationwide Stations, or, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, as
applicable, is operating with the maximum facilities specified by the
Authorization pertaining thereto.
(t) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding company" or a "subsidiary company" of a holding company,
or an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(u) No holder of any security of the Company has or will have any
right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
(v) The Shares have been approved for quotation on the Nasdaq
National Market, subject to notice of issuance.
(w) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
possesses the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by them in connection with the businesses now
operated by them, and none of the Company, the Subsidiaries and Nationwide
with respect to the Nationwide Stations, and, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, has received any notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which, singly or in
the
19
aggregate, could reasonably be expected to result in any Material
Adverse Change. The use of such Intellectual Property in connection with
the business and operations of each of the Company, the Subsidiaries and
Nationwide with respect to the Nationwide Stations, and, to the knowledge
of the Company, the Pending Transaction Parties with respect to the Pending
Properties does not, to the Company's knowledge, infringe on the rights of
any person except where any such infringement has not resulted in, or could
not reasonably be expected to result in any Material Adverse Change.
(x) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
(y) Each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (1) transactions
are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (3) access to assets is permitted only in accordance
with management's general or specific authorization; and (4) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(z) The Company has not (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which could
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares or (ii) since the initial filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Shares or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(aa) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
maintains insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and its Subsidiaries and
20
their businesses. None of the Company, any Subsidiary and Nationwide with
respect to the Nationwide Stations, and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
has received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be
made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be outstanding
and duly in force on the Closing Date.
(bb) Neither the Company nor Nationwide with respect to the Nationwide
Stations has, directly or indirectly, paid or delivered any fee, commission
or other sum of money or item or property, however characterized, to any
finder, agent, government official or other party, in the United States or
any other country, which is in any manner related to the business or
operations of the Company or Nationwide with respect to the Nationwide
Stations, respectively, which the Company knows or has reason to believe to
have been illegal under any Federal, state or local laws of the United
States or any other country having jurisdiction; and neither the Company
nor Nationwide with respect to the Nationwide Stations has participated,
directly or indirectly, in any boycotts or other similar practices in
contravention of law affecting any of its actual or potential customers.
(cc) The Company does not own any "margin securities" as that term is
defined in Regulations G and U of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), and, except as disclosed in
the Prospectus, none of the proceeds of the sale of the Shares will be
used, directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or
for any other purpose which might cause any of the Shares to be considered
a "purpose credit" within the meanings of Regulation G, T, U or X of the
Federal Reserve Board.
(dd) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to a local
marketing agreement or a joint sales agreement (a "Licensee") has been
issued by the FCC an FCC license (which is in full force and effect) for
the operation of the commercial radio broadcast station identified in the
Prospectus as programmed by the Company or any of its Subsidiaries, which
licenses expire on the dates set forth in the Prospectus.
21
(ee) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to an
exclusive sales agency agreement (a "Mexican Licensee"), has been issued by
the Mexican government all necessary Mexican licenses (which are in full
force and effect) for the operation of the commercial radio broadcast
station identified in the Prospectus as programmed by the Company or any of
its Subsidiaries. Each of the Company and its Subsidiaries have all
Authorizations necessary to deliver programming to the Mexican Licensees.
(ff) Each of the Company, its Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
filed with the FCC all material reports, documents, instruments,
information and applications required to be filed pursuant to the FCC's
rules, regulations and requests. No notice has been issued by the FCC
which could permit, or after notice or lapse of time or both could permit,
revocation or termination of any FCC license of any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or to the knowledge of the Company, of any of the Licensees
prior to the expiration dates thereof or which could reasonably be expected
to result in any other material impairment of any of the Subsidiaries', or
Nationwide with respect to the Nationwide Stations or its subsidiaries, or,
to the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries with respect to the Pending Properties, or, to the knowledge
of the Company, of any of the Licensees' rights thereunder and which could
reasonably be expected to, singly or in the aggregate, have a Material
Adverse Effect.
(gg) Each of the Company's radio and television stations (the
"Stations")is now operating, and has operated, in compliance in all
material respects with the Communications Act of 1934, as amended (the
"Communications Act"), and the published rules and regulations of the FCC.
There is not issued, outstanding or pending any Notice of Violation, Notice
of Apparent Liability, Order to Show Cause, material complaint or
investigation by or before the FCC which could materially threaten or
materially adversely affect any of the Company's or any of its
Subsidiaries', Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries' with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' FCC licenses or which could reasonably be
expected to result in any material adverse effect upon any of the Company's
Subsidiaries, Nationwide with respect to the Nationwide
22
Stations, or, to the knowledge of the Company, the Pending Transaction
Parties or their subsidiaries with respect to the Pending Properties, or,
to the knowledge of the Company, any Licensees' operation of its
respective stations and which could reasonably be expected to, singly or
in the aggregate, have a Material Adverse Effect, nor does the Company
have reason to believe that the FCC licenses with respect to the Stations
will not be renewed for a full eight year term when such FCC licenses
are due for renewal.
(hh) The execution, delivery and performance of the obligations by
the Company under this Agreement are not and will not be contrary to the
Communications Act, as amended, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
(ii) Other than for the divestiture of two radio stations in San
Diego, California as described in the Prospectus, the execution, delivery
and performance of the obligations by JCC, Citicasters Co. and Nationwide
(each, a "Nationwide Transaction Party" and, collectively, the "Nationwide
Transaction Parties") and, to the knowledge of the Company, by the Pending
Transaction Parties with respect to the Pending Properties to the extent
each is a party to the Transaction Documents are not and will not be
contrary to the Communications Act, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
Other than the applications relating to the divestiture of two radio
stations in San Diego, California, all necessary applications, exhibits or
other filings required by the FCC for transfer of control of the Stations
now controlled by the Pending Transaction Parties with respect to the
Pending Properties pursuant to the applicable Transaction Documents have
been filed with the FCC (the "Transfer Applications"). To the best of the
Company's knowledge, there are no circumstances that would cause the FCC to
reject the Transfer Applications.
(jj) The Nationwide Transaction Parties and, to the knowledge of the
Company, the Pending Transaction Parties, have, to the extent each is or
will be a party thereto, all requisite corporate power and authority to
execute, deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Nationwide Transaction
Parties and,
23
to the knowledge of the Company, the Pending Transaction Parties, to the
extent each is a party thereto, and each constitutes a valid and legally
binding agreement of the Nationwide Transaction Parties and, to the
knowledge of the Company, the Pending Transaction Parties, enforceable
against each Nationwide Transaction Party or Pending Transaction Party, as
applicable, in accordance with its terms; except as set forth in the
Prospectus, no consent, approval, authorization or order of any court or
governmental agency or body is required for the performance of any of the
Transaction Documents by each of the Nationwide Transaction Parties or,
to the knowledge of the Company, each Pending Transaction Party, to the
extent each is a party thereto, or the consummation by each of the
Nationwide Transaction Parties, or to the knowledge of the Company,
each of the Pending Transaction Parties, of any of the transactions
contemplated thereby, except such as may be required and have been
obtained, or upon effectiveness of the Registration Statement, will have
been obtained, under the Act, the Exchange Act, the TIA, or state
securities or "Blue Sky" laws or regulations or such as may be required by
the NASD in connection with the purchase and distribution of the Shares by
the Underwriters; and none of the Nationwide Transaction Parties, is (i) in
violation of its charter or bylaws, (ii) in violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or
any of their respective properties or assets, which violation would have a
Material Adverse Effect, or (iii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any of the Transaction Documents or any other contract, indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, permit, Authorizations, certificate or agreement or instrument
to which any of them is a party or to which any of them is subject, which
default would have a Material Adverse Effect.
(kk) The execution, delivery and performance by the Nationwide
Transaction Parties, to the extent each is a party thereto, of each of the
Transaction Documents, and the consummation by the respective Nationwide
Transaction Parties of the transactions contemplated thereby, will not
violate, conflict with or constitute or result in a breach of or a default
under (or an event which, with notice or lapse of time, or both, would
constitute a breach of or a default under) any of (i) the terms or
provisions of any of the Transaction Documents or any other indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, or agreement or instrument to which a Nationwide Transaction
Party, is a party or to which any of their respective properties or assets
are subject, which violation, conflict, breach or default would have a
Material Adverse Effect, (ii) the charter or bylaws of the
24
Nationwide Transaction Party, or (iii) any statute, judgment, decree,
order, rule or regulation of any court, governmental agency or other body
or self regulatory organization applicable to each Nationwide Transaction
Party, or any of their respective properties or assets, which violation,
conflict, breach or default would have a Material Adverse Effect.
(ll) The Nationwide Acquisition has been duly authorized by the
Nationwide Transaction Parties and the transactions contemplated by the
Transaction Documents have been approved, to the extent required, by all
appropriate corporate action; approval of the transactions contemplated by
the Transaction Documents by the shareholders of the Company is not
required.
(mm) The Company has delivered to the Underwriters a true and
correct copy of each of the Transaction Documents that have been
executed and delivered prior to the date of this Agreement and each
other Transaction Document in the form substantially as it will be
executed and delivered, together with all related agreements and all
schedules and exhibits thereto, and there have been no amendments,
alterations, modifications or waivers of any of the provisions of any of
the Transaction Documents since their date of execution or from the form
in which it has been delivered to the Underwriters; there exists as of
the date hereof (after giving effect to the transactions contemplated by
the Transaction Documents) no event or condition which would constitute
a default or an event of default (in each case as defined in the Credit
Facility, the LYONs due 2011, the 10-1/8% Notes, the 9-3/4% Notes, the
8-3/4% Notes, the LYONs or the Sub Notes, respectively) under the Credit
Facility, the LYONs due 2011, the 10-1/8% Notes, the 9-3/4% Notes, the
8-3/4% Notes, the LYONs or the Sub Notes, respectively, and no event or
condition which would constitute a default or an event of default (in
each case as defined in each of the Transaction Documents) under any of
the Transaction Documents other than the Credit Facility, the LYONs due
2011, the 10-1/8% Notes, the 9-3/4% Notes, the 8-3/4% Notes, the LYONs
or the Sub Notes, which would result in a Material Adverse Effect or
materially adversely effect the ability of each of the Company or
Nationwide to consummate the transactions contemplated by the
Transaction Documents. For purposes of this Agreement, "LYONS DUE 2011"
means the liquid yield option notes due 2011 issued by the Company
pursuant to an Indenture, dated as of June 12, 1996, by and between the
Company and the Bank of New York; "10-1/8% NOTES" means the 10-1/8%
Senior Subordinated Notes
25
due 2006 issued by JCAC, Inc. (predecessor to JCC), pursuant to an
Indenture, dated as of June 12, 1996, by and among JCAC, Inc., the
Company and First Trust of Illinois, National Association; "9-3/4%
NOTES" means the 9-3/4% Senior Subordinated Notes due 2006 issued by JCC
pursuant to an Indenture, dated as of December 17, 1996, by and among
JCC, the Company, the Subsidiary Guarantors named therein and the Bank
of New York; and "8-3/4% NOTES" means the 8-3/4% Senior Subordinated
Notes due 2007 issued by JCC pursuant to an Indenture, dated as of June
11, 1997, by and among JCC, the Company, the Subsidiary Guarantors named
therein and the Bank of New York.
(oo) The Company has filed with the Commission all filings that are
required to be filed as of the date hereof with respect to the financial
statements of each of the Nationwide Transaction Parties and each of the
Pending Transaction Parties in filings made under the Act and under the
Exchange Act, specifically as required by Rule 3-05 of Regulation S-X and
General Instructions and Item 7 of Form 8-K.
(pp) Each of the representations and warranties contained in each of
the Transaction Documents are true and correct on and as of the date
hereof, except as could not have a Material Adverse Effect.
(qq) The Company meets the requirements for registering an offering
of securities with the Commission on registration statement Form S-3
pursuant to the standards for those Forms prior to October 21, 1992.
(rr) The LYONs have received a rating of B3 from Moody's Investors
Service ("Moody's"); and the Sub Notes have received a rating of B2 from
Moody's.
(ss) Immediately after any sale of the Shares, the LYONs and the Sub
Notes by the Company or JCC, as applicable, the aggregate amount of
securities that have been issued and sold by the Company or JCC, as
applicable (including the Shares, the Sub Notes and the LYONs) will not
exceed the amount of securities registered under the Registration
Statement.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (i) each of
the Underwriters and (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) any of
the Underwriters (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any of the Underwriters or
26
any controlling person (any person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an "Indemnified Person") to the
fullest extent lawful, from and against any and all losses, claims,
damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Person) directly or indirectly caused by,
related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement or the
Prospectus (including any amendment or supplement thereto) or any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, PROVIDED,
HOWEVER, that (i) except insofar as such losses, claims, damages,
liabilities, judgments, actions or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made
in reliance upon and in conformity with information relating to any of the
Underwriters furnished in writing to the Company by DLJ expressly for use
in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or any preliminary prospectus,
(ii) the foregoing indemnity agreement with respect to any untrue statement
contained in or omission from a preliminary prospectus shall not inure to
the benefit of the Underwriter from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased Shares, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of the
Underwriters to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Shares to such person and the
untrue statement contained in or omission from such preliminary prospectus
was corrected in the Prospectus (or the Prospectus as amended or
supplemented). The Company shall notify you promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental
investigation) or litigation in connection with the matters addressed by
this Agreement which involves the Company or an Indemnified Person.
27
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the Company,
such Underwriter (or the Underwriter controlled by such controlling person)
shall promptly notify the Company in writing (provided, that the failure to
give such notice shall not relieve the Company of its obligations pursuant
to this Agreement). Such Indemnified Person shall have the right to employ
its own counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Company (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder). The Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) at any time for such Indemnified Persons, which firm
shall be designated by DLJ. The Company shall be liable for any settlement
of any such action or proceeding effected with the Company's prior written
consent, which consent will not be unreasonably withheld, and the Company
agrees to indemnify and hold harmless any Indemnified Person from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested the Company to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the second sentence of
this paragraph, the Company agrees that it shall be liable for any
settlement of any proceeding effected without the Company's written consent
if (i) such settlement is entered into more than 10 business days after
receipt by the Company of the aforesaid request, and (ii) the Company shall
not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. The Company shall not, without the
prior written consent of each Indemnified Person, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or
not any Indemnified Person is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of
each Indemnified Person from all liability arising out of such action,
claim, litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign
28
the Registration Statement, any person controlling (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
and the officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity
from the Registrants to each of the Indemnified Persons, but only with
respect to claims and actions based on information relating to such
Underwriter furnished in writing by DLJ expressly for use in the
Prospectus.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, judgments,
actions and expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying parties and the indemnified
party, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and any of the
Underwriters, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by such Underwriter, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The indemnity and
contribution obligations of the Company set forth herein shall be in
addition to any liability or obligation the Company may otherwise have to
any Indemnified Person.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
PRO RATA allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the
29
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities, judgments, actions or
expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, none of the Underwriters (and its related
Indemnified Persons) shall be required to contribute any amount in excess
of the amount by which the total underwriting discount applicable to the
Shares underwritten by it and distributed to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7(d) are
several in proportion to the respective number of Shares purchased by each
of the Underwriters hereunder and not joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Company under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Shares contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. The
Company shall have performed or complied with all of its obligations
and agreements herein contained and required to be performed or complied
with by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule 430A
promulgated under the Act, such post-effective amendment shall have become
effective) not later than 10:00 A.M. (and in the case of a Registration
Statement filed under Rule 462(b) of the Act, not later than 10:00 P.M.),
New York City time, on the date of this Agreement or at such later date and
time as you may
30
approve in writing, (ii) at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission and every request for additional
information on the part of the Commission shall have been complied with
in all material respects, and (iii) no stop order suspending the sale of
the Shares in any jurisdiction referred to in Section 5(g) shall have been
issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Shares, the LYONs, or the Sub Notes and no injunction, restraining order
or order of any nature by a Federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance of the Shares or the consummation of the transactions
contemplated by the Transaction Documents.
(d) (i) Since the date hereof or since the dates as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Change, (ii) since the date
of the latest balance sheet included, or incorporated by reference, in the
Registration Statement and the Prospectus, there shall not have been any
material change in the capital stock or long-term debt, or material
increase in short-term debt, of the Company or any of the Subsidiaries
taken as a whole and (iii) the Company and the Subsidiaries taken as a
whole, shall have no liability or obligation, direct or contingent, that
is material to the Company and the Subsidiaries taken as a whole,
respectively, and is required to be disclosed on a balance sheet in
accordance with GAAP and is not disclosed on the latest applicable balance
sheet included in the Registration Statement and the Prospectus.
(e) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Vice President and a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(f) On the Closing Date, you shall have received:
31
(1) an opinion (satisfactory to you and your counsel), dated the
Closing Date, of Graydon, Head & Ritchey, counsel for the Company (which
opinion shall, in regards to any matters covered by the law of the State
of Florida, rely on the opinion of Florida counsel reasonably acceptable
to the Underwriters), to the effect \that:
(i) (A) the Company and each of Jacor Cable, Inc., a
Kentucky corporation, Broadcast Finance, Inc., an Ohio
corporation; Citicasters Co., an Ohio corporation; Jacor
Broadcasting Corporation, an Ohio corporation; Jacor Broadcasting
of Youngstown, an Ohio corporation; WHOK, Inc., an Ohio
corporation; Jacor Broadcasting of Florida, Inc., a Florida
corporation; Jacor Broadcasting of Sarasota, Inc., a Florida
corporation; Jacor Broadcasting of Tampa Bay, Inc., a Florida
corporation; JCC, a Florida corporation; GACC-N26LB, Inc., a
Delaware corporation; Jacor Broadcasting of Charleston, Inc.,
a Delaware corporation; Jacor Broadcasting of Kansas City, Inc.,
a Delaware corporation; Jacor Broadcasting of Las Vegas, Inc.,
a Delaware corporation; Jacor Broadcasting of Las Vegas II, Inc.,
a Delaware corporation; Jacor Broadcasting of Louisville, Inc.,
a Delaware corporation; Jacor Broadcasting of Louisville II,
Inc., a Delaware corporation; Jacor Broadcasting of Salt Lake
City, Inc., a Delaware corporation; Jacor Broadcasting of Salt
Lake City II, Inc., a Delaware corporation; Jacor Broadcasting
of San Diego, Inc., a Delaware corporation; Jacor Broadcasting
of St. Louis, Inc., a Delaware corporation; Jacor Licensee of
Charleston, Inc., a Delaware corporation; Jacor Licensee of
Kansas City, Inc., a Delaware corporation; Jacor Licensee of
Las Vegas, Inc., a Delaware corporation; Jacor Licensee of
Las Vegas II, Inc., a Delaware corporation; Jacor Licensee of
Louisville, Inc, a Delaware corporation; Jacor Licensee of
Louisville II, Inc., a Delaware corporation; Jacor Licensee of
Salt Lake City, Inc., a Delaware corporation; Jacor Licensee of
Salt Lake City II, Inc., a Delaware corporation; Jacor/Premiere
Holding, Inc., a Delaware corporation; Multiverse Acquisition
Corp., a Delaware corporation; Noble Broadcasting Group, Inc.,
a Delaware corporation; Noble Broadcasting Holdings, Inc., a
Delaware corporation; NSN Network Services, Ltd., a Delaware
corporation; Premiere Radio Networks, Inc., a Delaware
corporation, and Radio-Active Media, Inc., a Delaware
corporation, is a duly organized and validly existing corporation
in good standing under the laws of its jurisdiction of
incorporation, has the requisite corporate power and authority
to own, lease and operate its properties and to
32
conduct its business as described in the Registration Statement
and the Prospectus, and is duly qualified as a foreign
corporation and in good standing in each jurisdiction where the
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except where the failure
to be so qualified could not be reasonably expected to have,
singly or in the aggregate, a Material Adverse Effect; and (B)
the Company has the requisite corporate power and authority to
execute, deliver and perform this Agreement;
(ii) the Transaction Documents have been duly authorized,
executed and delivered by the Registrants, as applicable;
(iii) the authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under
"Capitalization" and conforms in all material respects to the
descriptions thereof contained in the Registration Statement and
the Prospectus; (B) the shares of issued and outstanding Common
Stock, have been duly authorized and are validly issued and are
fully paid and nonassessable; (C) the Shares have been duly
authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and
nonassessable; and (D) the issuance of the Shares is not subject
to preemptive or other similar rights;
(iv) all of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Subsidiary listed
in subparagraph (i) above have been duly and validly authorized
and issued and are fully paid and nonassessable, and the shares
of capital stock of, or other ownership interests in, each
Subsidiary are owned, directly or through Subsidiaries, by the
Company, and are owned free and clear of any Lien, except for
Liens pursuant to the Credit Facility;
(v) to the knowledge of such counsel (after due inquiry)
there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or
Liens related to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of, or other ownership
interest in, any Subsidiary except as disclosed in the
Prospectus;
33
(vi) neither the Company nor any of the Subsidiaries is (A)
an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company
Act of 1940, as amended, or (B) a "holding company" or a
"subsidiary company" of a holding company, or an "affiliate"
thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended;
(vii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution
or delivery of the Shares, the LYONs or the Sub Notes will
violate Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System;
(viii) when authenticated in accordance with the terms of
the respective indenture and delivered to and paid for in
accordance with the terms of the respective underwriting
agreement, the LYONs and the Sub Notes will constitute valid and
legally binding obligations of the Company and JCC, respectively,
enforceable against the Company and JCC, respectively, in
accordance with their respective terms and entitled to the
benefits of the respective indenture, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and
remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at
law or in equity) and except to the extent that a waiver of
rights under any usury laws may be unenforceable;
(ix) to the best knowledge of such counsel, there is no
current, pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary or to which
any of their respective properties is subject of a character
required to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus;
(x) the descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material
respects and fairly present the information required to be
34
shown; and such counsel does not know of any legal or
governmental proceedings required to be described in the
Registration Statement or Prospectus which are not described as
required or of any contracts or documents of a character required
to be described in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement which are
not described and filed as required; it being understood that
such counsel need express no opinion as to the financial
statements, notes or schedules or other financial data included
therein;
(xi) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any
supplements and term sheets thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by
Rule 424(b); and to the knowledge of such counsel (after due
inquiry) no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and
no proceedings therefor have been instituted or are pending
or contemplated under the Act;
(xii) no authorization, approval, consent or order of, or
filing with, any court or governmental body or agency is required
for the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been obtained
and made under the Act, the Exchange Act, state securities or
"Blue Sky" laws or regulations or such as may be required by the
NASD; no authorization, approval, consent or order of, or filing
with, any court or governmental body or agency is required for
the consummation by the Company, or Nationwide with respect to
the Nationwide Stations, of the transactions contemplated by the
applicable Transaction Documents, except as disclosed in the
Prospectus; the execution and delivery of this Agreement, the
issuance and sale of the Shares, the performance of this
Agreement and the consummation of the transactions contemplated
by this Agreement will not result in a breach or violation of any
of (A) any of the respective charters or bylaws of the Company or
any of the Subsidiaries or (B) to the knowledge of such counsel
(after due inquiry), the terms or provisions of any agreement or
instrument which is filed as an exhibit to the Registration
Statement and to which the Company or any of the Subsidiaries is
a party or by which any of them is bound, or to which any of the
properties of the Company or any of the Subsidiaries is subject,
or (C) to the knowledge of such counsel (after due inquiry)
constitute a default under, any statute, rule or regulation to
which the
35
Company or any Subsidiary is bound or to which any of the
properties of the Company or any Subsidiary is subject or (D)
any order of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any
of their properties which conflict, breach or default in each of
the cases described in clauses (B), (C) and (D) could reasonably
be expected to have a Material Adverse Effect;
(xiii) at the time it became effective and on the Closing
Date, the Registration Statement complied as to form in all
material respects with the Act;
(xiv) to the knowledge of such counsel, neither the Company
nor the Subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to the
Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to result in a Material Adverse Change.
The use of such Intellectual Property in connection with the
business and operations of the Company and the Subsidiaries does
not, to the knowledge of such counsel, infringe on the rights of
any person;
(xv) to the best knowledge of such counsel, (A) there are no
franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments to which the Company, any of
the Subsidiaries or Nationwide with respect to the Nationwide
Stations are a party or by which any of them may be bound that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement other than those described therein or filed as exhibits
thereto and (B) no default exists in the due performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument so described or filed in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement, or any agreement
identified on a schedule attached to the opinion, except for
defaults which could not reasonably be expected to have a
Material Adverse Effect and (c) the statements in the Prospectus
under the captions "Description of Capital Stock" and "Shares
Eligible for Future Sale" insofar as they relate to statements of
law or legal conclusions are accurate in all material respects;
36
(xvi) the Company, the Subsidiaries and to the knowledge of
such counsel, Nationwide, to the extent each is a party thereto,
have full corporate power and authority to execute, deliver and
perform its respective obligations under the applicable
Transaction Documents;
(xvii) the Transaction Documents, assuming the
authorization, execution and delivery thereof by the parties
other than the Company and Nationwide constitute valid and
legally binding agreements of the respective parties thereto
enforceable against each of the parties, to the extent each is
a party thereto, inaccordance with their respective terms subject
to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights generally and to
principles of equity (regardless of whether enforcement is sought
in a proceeding at law or equity) and except to the extent that
a waiver of rights under usury laws may be unenforceable; and
(xviii) the approval of the transactions contemplated by the
Transaction Documents by the stockholders of the Company is not
required.
(2) Such counsel shall additionally state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants
for the Company, your representatives and your counsel in connection
with the preparation of the Registration Statement and Prospectus and
has considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements (except as indicated above); and such counsel
advises you that, on the basis of the foregoing, no facts came to
such counsel's attention that caused such counsel to believe that
the Registration Statement (as amended or supplemented, if
applicable), at the time such Registration Statement or any
post-effective amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading (other than information omitted therefrom
in reliance on Rule 430A under the Act), or the Prospectus (as
amended or supplemented), as of its date and the Closing Date,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. Without limiting
37
the foregoing, such counsel may further state that the firm assumes
no responsibility for, and the firm has not independently verified,
the accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in the
Registration Statement.
(3) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Hogan & Hartson L.L.P., counsel for the Company with
respect to FCC and related matters to the effect that:
(i) those statements in the Prospectus (including the
statements incorporated by reference in the Prospectus, under
the caption "Business -- Federal Regulation of Radio
Broadcasting" in the Company's Form 10-K filed for the year
ended December 31, 1996) that describe provisions of the
Communications Act of 1934, as amended (the "Communications
Act"), and the FCC's published rules or regulations (for purposes
of this opinion only, the "Rules") are accurate descriptions in
all material respects.
(ii) Schedule 1 to this opinion sets forth a complete list
of the main station authorizations issued by the FCC to the
Company and its Subsidiaries (for purposes of this opinion only,
the "Licenses"). To such counsel's knowledge, the Licenses are
the only licenses, permits or authorizations required under the
Communications Act for the broadcast of signals on the main
station frequency of each of the radio stations listed on
Schedule 2 (for purposes of this opinion only, the "Jacor
Stations"). Except for the pending applications noted on
Schedule 1 hereto, the Licenses are in full force and effect (and
the time within which any administrative or judicial appeal,
reconsideration, rehearing or other review might be sought has
lapsed with respect to the grant of the authorizations for the
currently effective terms, and no such appeal, reconsideration,
rehearing, or other review has been taken or instituted), and are
held by the relevant Subsidiary, and the expiration date of each
License is set forth in Schedule 1 hereto. Except as indicated
on Schedule 3 to this opinion, the Licenses are not subject to
any conditions imposed by the FCC other than those that appear on
the Licenses or are customarily imposed by the FCC on radio
stations of the same class and type.
(iii) Except as listed in Schedule 4 hereto, there is no
proceeding or other administrative action pending or, to such
38
counsel's knowledge, threatened, before the FCC against the
Company or any Subsidiary, which, if adversely determined, would
materially and adversely affect the business or financial
condition of the Company and its Subsidiaries, taken as a whole.
To such counsel's knowledge, except as listed on Schedule 5 to
this opinion, the Company and the Subsidiaries have filed with
the FCC during the current license term of each License all
material reports and forms required to be filed by the Company
and the Subsidiaries with the FCC with respect to the Jacor
Stations.
(iv) The execution and delivery by the Company and any
Subsidiary of the Transaction Documents, and the performance of
the obligations as of the date hereof by the Company under the
Underwriting Agreement, (i) do not violate the Communications
Act, (ii) do not violate any of the Rules, (iii) do not violate
the terms of any of the Licenses, (iv) do not cause any
forfeiture or impairment of any License and (v) do not require
any consent, approval or authorization of the FCC that has not
been obtained. Except as indicated on Schedule 6, all necessary
applications required by the FCC as of the date hereof for the
transfer of control or assignment of the licenses of the stations
described in the Prospectus under "Pending Radio Station
Transactions" have been filed with the FCC.
(g) You shall have received an opinion, dated the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"), counsel for the
Underwriters, in form and substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former), in form and
substance satisfactory to you, from Coopers & Lybrand L.L.P., Ernst & Young
LLP and KPMG Peat Marwick, independent public accountants, containing the
information and statements of the type ordinarily included in accountants'
"comfort letters" to Underwriters, with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus for each of (i) the Company and the C&L Audited
Companies, (ii) Premiere and (iii) Nationwide, respectively.
(i) Skadden Arps shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for
39
the purpose of enabling them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, the Company shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
(k) At the Closing Date, the LYONs and the Shares shall have been
approved for quotation on the Nasdaq Stock Market's SmallCap Market and
Nasdaq National Market, respectively, subject to notice of issuance.
(l) There shall have been no amendments, alterations, modifications,
or waivers of any provisions of the Transaction Documents since the date of
the execution and delivery thereof by the parties thereto other than those
which under the Act are not required to be disclosed in the Prospectus or
any supplement thereto and which have been disclosed to the Underwriters
prior to the date hereof.
(m) Each of the Company, and Nationwide, shall, to the extent each
is a party thereto, have complied in all respects with all agreements and
covenants in the Transaction Documents and performed all conditions
specified therein that the terms thereof require to be complied with or
performed at or prior to the date hereof.
(n) Prior to or concurrently with the purchase and sale of the Shares
hereunder, the Company shall have completed the LYONs Offering and the Sub
Notes Offering.
(o) Except as is disclosed to the Underwriters in writing, the
representations and warranties of the Company, as applicable, and
Nationwide set forth in the Transaction Documents shall be true, accurate
and complete in all respects.
(p) Prior to the Closing Date, the Company shall have obtained the
determination of the Administrative Agent (as that term is defined in the
Credit Facility) pursuant to Section 6.11(g) of the Credit Facility that
the Sub Notes are substantially similar to the 10-1/8% Notes, the 9-3/4%
Notes and the 8-3/4% Notes.
40
(q) The Registrants shall not have failed on or prior to the
Closing Date to perform or comply with any of the agreements contained
herein.
The several obligations of the Underwriters to purchase any
Additional Shares hereunder is subject to the delivery to you on the
Applicable Closing Date of such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and
issuance of such Additional Shares and other matters relevant to the issuance
of such Additional Shares.
9. DEFAULTS. If on the Closing Date or any Option Closing Date,
as the case may be, any of the Underwriters shall fail or refuse to purchase
Firm Shares or Additional Shares, as the case may be, which it has agreed to
purchase hereunder on such date, and the aggregate amount of Firm Shares or
Additional Shares, as the case may be, that such defaulting Underwriter(s)
agreed but failed or refused to purchase does not exceed 10% of the total
number of Shares to be purchased on such date by all of the Underwriters,
each non-defaulting Underwriter shall be obligated severally, in the
proportion which the number of Firm Shares set forth opposite its name in
Schedule I hereto bears to the total number of Firm Shares which all the
non-defaulting Underwriters, as the case may be, have agreed to purchase, or
in such other proportion as you may specify, to purchase the Firm Shares or
Additional Shares, as the case may be, that such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase on
such date; PROVIDED that in no event shall the number of Firm Shares or
Additional Shares, as the case may be, that any Underwriter has agreed to
purchase pursuant to Section 3 hereof be increased pursuant to this Section 9
by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If, on the Closing Date or on the Option Closing Date, as the
case may be, any of the Underwriters shall fail or refuse to purchase the
Firm Shares or the Additional Shares, as the case may be, with respect to
which such default exceeds 10% of such total number of the Shares to be
purchased on such date by all Underwriter(s) and arrangements satisfactory to
the other Underwriter(s) and the Company for the purchase of such Shares are
not made within 48 hours after such default, this Agreement shall terminate
without liability on the part of the non-defaulting Underwriter(s) or the
Company, except as otherwise provided in this Section 9. In any such case
that does not result in termination of this Agreement, the Underwriters or
the Company may postpone the Closing Date or the Option Closing Date, as the
case may be, for not longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve a defaulting Underwriter from liability in
respect of any default by any such Underwriter under this Agreement.
41
10. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the later of (i) the execution and delivery of
this Agreement by the parties hereto, (ii) the effectiveness of the
Registration Statement, and (iii) if a post-effective amendment is required
to be filed pursuant to Rule 430A under the Act, the effectiveness of such
post-effective amendment.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change occurs
which, in the judgment of any Underwriter, make it impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares, (ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or the
financial markets of the United States or elsewhere, or any other substantial
national or international calamity or emergency if the effect of such
outbreak, escalation, calamity, crisis, change or emergency would, in the
judgment of any Underwriter, make it impracticable or inadvisable to market
the Shares on the terms and in the manner contemplated by the Prospectus,
(iii) any suspension or limitation of trading generally in securities on the
New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market
or in the over-the-counter markets or any setting of minimum prices for
trading on such exchanges or markets, (iv) any declaration of a general
banking moratorium by Federal, New York or Kentucky authorities, (v) the
taking of any action by any Federal, state or local government or agency in
respect of its monetary or fiscal affairs that in your judgment has a
material adverse effect on the financial markets in the United States, and
would, in your judgment, make it impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares, (vi) the
enactment, publication, decree, or other promulgation of any Federal or state
statute, regulation, rule or order of any court or other governmental
authority which, in your judgment, materially and adversely affects or will
materially and adversely affect the business or operations of the Company or
any Subsidiary, or (vii) any securities of the Company or any of the
Subsidiaries shall have been downgraded or placed on any "watch list" for
possible downgrading by any nationally recognized statistical rating
organization, PROVIDED, that in the case of such "watch list" placement,
termination shall be permitted only if such placement would, in the judgment
of any Underwriter, make it impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of the Shares or materially impair the
investment quality of the Shares.
The indemnities and contribution provisions and the other
agreements, representations and warranties of the Company, its officers and
directors and of the Underwriters set forth in or made pursuant to this
Agreement shall remain operative and
42
in full force and effect, and will survive delivery of and payment for the
Shares, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any of the Underwriters or by or on behalf
of the Company, the officers or directors of the Company or any controlling
person of the Company, (ii) acceptance of the Shares and payment for them
hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters pursuant to
clauses (i) or (vii) of the second paragraph of this Section 10 or because of
the failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
you for all out-of-pocket expenses (including the fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement,
the Company shall be liable for all expenses which it has agreed to pay pursuant
to Section 5(k) hereof.
11. NOTICES. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to it at
Jacor Communications, Inc., 50 East RiverCenter Boulevard, 12th Floor,
Covington, Kentucky 41011, Attention: Randy Michaels, Chief Executive
Officer, fax (606) 655-9345, with a copy to Graydon, Head & Ritchey, 1900
Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202, Attention:
Richard G. Schmalzl, Esq., and (b) if to any Underwriter, to Donaldson,
Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York, New York
10172 Attention: Syndicate Department, and, in each case, with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP at 300 South Grand Avenue, Suite
3400, Los Angeles, California 90071, Attention: Gregg A. Noel, Esq., or in
any case to such other address as the person to be notified may have
requested in writing.
12. SEVERABILITY. Any determination that any provision of this
Agreement may be, or is, unenforceable shall not affect the enforceability of
the remainder of this Agreement.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN
THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING
RELATED TO THIS AGREEMENT OR ANY OF THE
43
MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT.
THE COMPANY, ON BEHALF OF ITSELF AND THE SUBSIDIARIES, IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
14. SUCCESSORS. Except as otherwise provided, this Agreement has
been and is made solely for the benefit of and shall be binding upon the
Company, the Underwriters, any Indemnified Person referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or
by virtue of this Agreement. The terms "successors and assigns" shall not
include a purchaser of any of the Shares from any of the Underwriters merely
because of such purchase.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in one or more counterpart, the executed
counterparts shall each be deemed to be an original, not all such
counterparts shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to effect the meaning
or interpretation of, this Agreement.
17. SURVIVAL. The indemnities and contribution provisions and the
other agreements, representations and warranties of the Company, its officers
and directors and of the Underwriter set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf
of the Underwriter or by or on behalf of the Company, the officers or
directors of the Company or any controlling person of the Company, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination
of this Agreement.
44
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the
foregoing correctly sets forth the agreement among the Company and you.
Very truly yours,
JACOR COMMUNICATIONS, INC.
By: /s/ R. Christopher Weber
------------------------------------
Name: R. Christopher Weber
Title: Senior Vice President
and Chief Financial Officer
45
JACOR COMMUNICATIONS COMPANY**;
BROADCAST FINANCE, INC.; CINE FILMS,
INC.; CINE GUARANTORS, INC.; CINE
GUARANTORS II, INC.; CINE GUARANTORS
II, LTD.; CINE MOBILE SYSTEMS INT'L.
N.V.; CINE MOVIL S.A. DE C.V.;
CITICASTERS CO.; GACC-N26LB, INC.;
GREAT AMERICAN MERCHANDISING GROUP,
INC.; GREAT AMERICAN TELEVISION
PRODUCTIONS, INC.; INMOBILIARIA
RADIAL, S.A. DE C.V.*; JACOR
BROADCASTING CORPORATION; JACOR
BROADCASTING OF ATLANTA, INC.; JACOR
BROADCASTING OF CHARLESTON, INC.;
JACOR BROADCASTING OF COLORADO, INC.;
JACOR BROADCASTING OF DENVER, INC.;
JACOR BROADCASTING OF FLORIDA, INC.;
JACOR BROADCASTING OF KANSAS CITY,
INC.; JACOR BROADCASTING OF LAS
VEGAS, INC.; JACOR BROADCASTING OF
LAS VEGAS II, INC.; JACOR
BROADCASTING OF LOUISVILLE, INC.;
JACOR BROADCASTING OF LOUISVILLE II,
INC.; JACOR BROADCASTING OF SALT LAKE
CITY, INC.; JACOR BROADCASTING OF
SALT LAKE CITY II, INC.; JACOR
BROADCASTING OF ST. LOUIS, INC.;
JACOR BROADCASTING OF SAN DIEGO,
INC.; JACOR BROADCASTING OF SARASOTA,
INC.; JACOR BROADCASTING OF TAMPA
BAY, INC.; JACOR BROADCASTING OF
TOLEDO, INC.; JACOR BROADCASTING OF
YOUNGSTOWN, INC.; JACOR CABLE, INC.;
JACOR LICENSEE OF
46
CHARLESTON, INC.; JACOR LICENSEE OF
KANSAS CITY, INC., JACOR LICENSEE OF
LAS VEGAS, INC.; JACOR LICENSEE OF
LAS VEGAS II, INC.; JACOR LICENSEE OF
LOUISVILLE, INC.; JACOR LICENSEE OF
LOUISVILLE II, INC.; JACOR LICENSEE
OF SALT LAKE CITY, INC.; JACOR
LICENSEE OF SALT LAKE CITY II, INC.;
JACOR/PREMIERE HOLDING, INC.; JBSL,
INC.; LOCATION PRODUCTIONS, INC.;
LOCATION PRODUCTIONS II, INC.;
MULTIVERSE ACQUISITION CORP.;
***NOBLE BROADCAST CENTER, INC.;
NOBLE BROADCAST GROUP, INC.; NOBLE
BROADCAST HOLDINGS, INC.; NOBLE
BROADCAST LICENSES, INC.; NOBLE
BROADCAST OF SAN DIEGO, INC.; NOBRO,
S.C*.; NOVA MARKETING GROUP, INC.;
NSN NETWORK SERVICES, LTD.; PREMIERE
RADIO NETWORKS, INC.***; RADIO-ACTIVE
MEDIA, INC.; SPORTS RADIO
BROADCASTING, INC.; SPORTS RADIO,
INC.; THE SY FISCHER COMPANY AGENCY,
INC.;VTTV PRODUCTIONS; AND WHOK, INC.
By: /s/ R. Christopher Weber
-------------------------------
Name: R. Christopher Weber
Title: Senior Vice President
and Assistant Secretary for all
above companies except those
marked with an *, of which he is
Treasurer, those marked with
an **, of which he is Senior Vice
President, Chief Financial Officer
and Secretary, and those
marked with an ***, of which
he is Senior Vice President
47
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN SACHS & CO.
MORGAN STANLEY & CO.
INCORPORATED
SMITH BARNEY INC.
Acting on behalf of themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Michael Hooks
---------------------------------
Name: Michael Hooks
Title: Managing Director
48
SCHEDULE I
Number of
Shares to
Underwriters Be Purchased
- ------------ ------------
Donaldson, Lufkin & Jenrette Securities Corporation. . . . . 912,000
Goldman Sachs & Co.. . . . . . . . . . . . . . . . . . . . . 912,000
Morgan Stanley & Co. Incorporated. . . . . . . . . . . . . . 912,000
Salomon Smith Barney Inc.. . . . . . . . . . . . . . . . . . 912,000
Chase Securities Inc. . . . . . . . . . . . . . . . . . . . 152,000
CIBC Oppenheimer Corp. . . . . . . . . . . . . . . . . . . . 152,000
Dresdner Kleinwort Benson North America LLC . . . . . . . . 152,000
NationsBanc Montgomery Securities LLC . . . . . . . . . . . 152,000
Genesis Merchant Group Securities . . . . . . . . . . . . . 152,000
TD Securities (USA) Inc. . . . . . . . . . . . . . . . . . . 152,000
------------
Total.. . . . . . . . . . . . . . . . . . . . . . . . . 4,560,000
===========