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Exhibit 2.3
JACOR SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT, dated as of February ___, 1996, is among
Citicasters Inc., a Florida corporation ("Citicasters"), and the Xxxx/Chilmark
Fund L.P., a Delaware limited partnership ("ZCF").
WHEREAS, Jacor Communications, Inc., an Ohio corporation (the
"Company"), JCAC, Inc., a Florida corporation ("Acquisition") and Citicasters
are, concurrently with the execution of this Agreement, entering into an
Agreement and Plan of Merger (the "Merger Agreement"), which provides, among
other things, upon the terms and subject to the conditions thereof, that
Acquisition will be merged with and into Citicasters in accordance with the
Florida Business Corporation Act (the "Merger") such that each share of Class A
Common Stock, par value $.01 per share, of Citicasters (the "Shares") issued and
outstanding immediately prior to the effective time of the Merger (other than
Shares owned by Citicasters, the Company, Acquisition or any direct or indirect
subsidiary of Citicasters, the Company or Acquisition, and any Shares held in
the treasury of the Company) will be converted into the right to receive the
Merger Consideration (as defined in the Merger Agreement);
WHEREAS, ZCF owns in excess of 69.0% of the outstanding shares (the
"ZCF Shares") of the Company's common stock, without par value ("Common Stock");
and
WHEREAS, in order to induce Citicasters to enter into the Merger
Agreement, ZCF has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, ZCF and Citicasters hereby agree as follows.
Section 1. Representations and Warranties of ZCF. ZCF represents and
warrants to Citicasters as follows:
(a) ZCF is a limited partnership duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) ZCF has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.
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(c) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by ZCF and no other proceedings on the part of ZCF are necessary to
authorize this Agreement or to consummate the transactions so contemplated.
(d) This Agreement has been duly and validly executed and delivered by
ZCF and constitutes a legal, valid and binding agreement of ZCF enforceable
against ZCF in accordance with its terms, except that the enforceability hereof
may be subject to applicable bankruptcy, insolvency or other similar laws now or
hereinafter in effect, affecting creditors' rights generally.
(e) For so long as this Agreement is in effect, ZCF hereby grants
Citicasters an irrevocable proxy and irrevocably appoints Citicasters or its
designees, with full power of substitution, its attorney and proxy to vote all
the ZCF Shares, and any shares of Common Stock hereafter acquired by ZCF, at any
meeting of the shareholders of the Company, however called, in favor of any
proposal to approve for issuance shares of Common Stock and warrants to purchase
shares of Common Stock, in each case, in an amount necessary for the payment of
the Merger Consideration pursuant to the Merger Agreement, and if required, the
adoption of the Merger Agreement and the approval of the Merger. This Agreement
does not grant to Citicasters or its designees any right to vote on any other
matters which may be presented to the Company's shareholders at such meeting.
The proxy granted hereby shall be deemed to be a proxy coupled with an interest
for purposes of Section 1701.48(D) of the Ohio Revised Code.
(f) For so long as this Agreement is in effect, in any meeting of the
stockholders of the Company, however called, ZCF shall vote or cause to be voted
all of the ZCF Shares, and any shares of Common Stock hereafter acquired by ZCF,
in favor of any proposal to approve for issuance shares of Common Stock and
warrants to purchase shares of Common Stock, in each case, in an amount
necessary for the payment of the Merger Consideration pursuant to the Merger
Agreement.
(g) As of the date of this Agreement, ZCF is the beneficial owner of at
least 69.0% of the outstanding shares of Common Stock.
Section 2. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with
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the terms hereof and that the parties shall be entitled to specific performance
of the terms hereof, in addition to any other remedy at law or in equity.
Section 3. Expenses. Each party shall bear its own expenses and costs
in connection with this Agreement and the transactions contemplated hereby.
Section 4. Amendment; Assignment. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto. No party may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party.
Section 5. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 6. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested),
to the other party as follows:
(a) If to ZCF, to:
Xxxxx X. Xxxxx
Xxxx/Chilmark Fund L.P.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxx, Head & Xxxxxxx
1900 Fifth Third Center
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
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and
Xxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
(b) If to Citicasters, to:
Xxxxxx X. Xxxxx, Esq.
Citicasters Inc.
Suite 000
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
American Financial Group, Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 7. Reasonable Best Efforts. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things reasonably necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the transactions contemplated
by this Agreement.
Section 8. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Ohio, without regard to the
principles of conflicts of law thereof.
Section 9. Termination. This Agreement shall terminate upon the earlier
to occur of the consummation of the Merger or the termination of the
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Merger Agreement without the consummation of the Merger. No such termination
shall relieve any party from liability for any breach of this Agreement.
Section 10. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity and enforceability of the other provisions hereof. If
any provision of this Agreement, or the application thereof to any person or
entity or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid and
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons, entities or circumstances shall
not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
Section 11. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
Section 12. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Section 13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its representatives thereunto duly authorized, all as
of the day and year first above written.
Xxxx/Chilmark Fund L.P.
By:
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Name:
Title:
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Citicasters Inc.
By:
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Name:
Title:
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