Exhibit 2.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement"), dated as of March 13, 1996, is made
by and among Jacor Communications, Inc., an Ohio corporation ("Acquiror"),
Citicasters, Inc., a Florida corporation (the "Company"), and PNC Bank, Ohio,
N.A., as Escrow Agent ("Escrow Agent").
Acquiror and the Company are the parties to an Agreement and Plan of Merger
dated as of the date hereof (as in effect from time to time, the "Merger
Agreement"). Each capitalized term which is used but not otherwise defined in
this Agreement has the meaning assigned to that term in the Merger Agreement.
If the Merger Agreement is terminated by the Company pursuant to any Escrow-
Surrender Provision (as defined below), then the Company will be entitled to a
payment in the amount of the Escrow Payment (as defined below). As security
for the obligations to make such payment, Acquiror is depositing or causing to
be deposited a Letter of Credit (as defined below) in accordance with the
terms of this Agreement, to be held and acted upon by Escrow Agent in
accordance with the provisions of this Agreement.
The parties agree as follows:
1 Definitions. As used in this Agreement:
(a) "Escrow-Surrender Event" means solely the termination of the Merger
Agreement under the circumstances defined in Sections 8.2(b)(i),
8.2(b)(ii), 8.2(b)(iii), 8.2(b)(iv) or 8.2(b)(v) of the Merger Agreement.
(b) "Escrow-Retention Event" means the termination of the Merger
Agreement in any manner that is not an Escrow-Surrender Event.
2 Escrow Payment. (a) Simultaneously with the delivery of the consents by
the Consenting Shareholders (as defined in the Merger Agreement) (the
"Delivery Date"), Acquiror will deliver or cause to be delivered to Escrow
Agent an irrevocable, direct pay letter of credit issued to Escrow Agent on
behalf of Acquiror by Banque Paribas (the "Initial Issuing Bank") in the
amount of $75,000,000.00 (the "Escrow Payment"). If Acquiror fails to comply
with the requirements of the preceding sentence, Acquiror will on the day
immediately following the Delivery Date pay to the Escrow Agent in immediately
available funds the sum of $75,000,000.00. Acquiror, at its option and at its
expense, may replace the Initial Letter of Credit (or any Replacement Letter
of Credit) by delivery of another irrevocable, direct pay letter of credit in
the amount of $75,000,000.00 issued by an institution that is reasonably
acceptable to the Company, and in a form that is reasonably acceptable to the
Company (any such other letter of credit being referred to herein as a
"Replacement Letter of Credit"). Upon receipt of a Replacement Letter of
Credit, Escrow Agent will surrender the replaced letter of credit to the
issuing institution for cancellation. Any letter of credit held by the Escrow
Agent at any time pursuant to this Agreement is referred to herein as the
"Letter of Credit," and any institution that has issued such Letter of Credit
is referred to herein as the "Issuing Bank".
(b) Notwithstanding anything in this Agreement to the contrary, the Letter
of Credit (or any Replacement Letter of Credit) may have any expiration date
reasonably determined by Acquiror; provided, however, that (i) if the Merger
Agreement shall not have been terminated and (ii) if a Replacement Letter of
Credit in the amount of $75,000,000.00 issued by an institution reasonably
acceptable to the Company and in a form that is reasonably acceptable to the
Company shall not have been delivered and accepted by the Escrow Agent at
least two business days prior to the expiration date of the then outstanding
Letter of Credit (the "Expiration Date"), then the Escrow Agent shall (x) on
the business day immediately preceding the Expiration Date, present to the
Issuing Bank in accordance with the Letter of Credit a draft for payment to
the Escrow Agent of an amount equal to $75,000,000.00 (the "Letter of Credit
Proceeds"); and (y) upon receipt of the Letter of Credit Proceeds, hold such
proceeds in escrow until Acquiror shall have delivered, and the Escrow Agent
shall have accepted, a Letter of Credit in the amount of $75,000,000.00 issued
by an institution reasonably acceptable to the Company and in a form that is
reasonably acceptable to the Company.
A-VI-1
3 Appointment of Escrow Agent. Acquiror and the Company hereby designate and
appoint Escrow Agent as their joint escrow agent pursuant to the terms of this
Agreement. Escrow Agent agrees to (a) act as Escrow Agent, (b) hold and act upon
the Letter of Credit and (c) deliver the proceeds of any payment under the
Letter of Credit, in each case in accordance with the terms and conditions of
this Escrow Agreement.
4 Disbursement Requests. At any time after termination of the Merger Agreement
pursuant to any Escrow-Surrender Event, the Company may deliver to Escrow Agent
and simultaneously to Acquiror a written notice (a "Company Payment Request")
which states that such termination has occurred and requests that Escrow Agent,
unless the Escrow Agent shall have already drawn on the Letter of Credit
pursuant to Section 2(b) of this Agreement, (i) present to the Issuing Bank in
accordance with the Letter of Credit a draft for payment to Escrow Agent of an
amount equal to $75,000,000.00, and (ii) upon receipt of proceeds of such
payment under the Letter of Credit, pay such proceeds in the manner indicated in
such notice. If the Escrow Agent shall have already drawn on the Letter of
Credit pursuant to Section 2(b) of this Agreement, the Escrow Agent shall, on
the second business day after the Escrow Agent's receipt of the Company Payment
Request, pay the proceeds of the Letter of Credit to the Company in the manner
indicated in the Company Payment Request. Promptly upon termination of the
Merger Agreement pursuant to an Escrow-Retention Provision, the Company shall
deliver to Escrow Agent and Acquiror a written notice (a "Company Surrender
Request") which states that such termination has occurred and requests that
Escrow Agent surrender the Letter of Credit to the Issuing Bank for
cancellation, or if the Escrow Agent shall have already drawn on the Letter of
Credit pursuant to Section 2(b), requests the Escrow Agent to pay the proceeds
of the Letter of Credit to Acquiror in the manner indicated in the Company
Surrender Request.
5 Escrow Agent's Release of the Escrow Fund.
(a) Actions upon Joint Instructions. Escrow Agent will give instructions to
the Issuing Bank or take other actions with respect to the Letter of Credit,
and make disbursements, in accordance with the joint written instructions of
the Company and Acquiror.
(b) Consummation of Merger. At the closing of the Merger, pursuant to joint
written instructions executed by Acquiror and the Company, Escrow Agent will
surrender the Letter of Credit to the Issuing Bank for cancellation, or if the
Escrow Agent shall have drawn on the Letter of Credit pursuant to Section
2(b), the Escrow Agent will pay the proceeds of the Letter of Credit to
Acquiror as directed by Acquiror. If the Letter of Credit is cancelled
pursuant to this paragraph 5(b), then this Agreement will terminate.
(c) Actions upon Company Payment Request. Upon receipt from the Company of a
Company Payment Request pursuant to paragraph 4, Escrow Agent will immediately
(and in any event within one business day) give Acquiror notice of such
Company Payment Request. Escrow Agent will take the requested actions set
forth in such Company Payment Request on the second business day following
receipt of such Company Payment Request.
(d) Actions upon Company Surrender Request. Immediately upon receipt from
the Company of a Company Surrender Request pursuant to paragraph 4, Escrow
Agent will take the requested actions set forth in such Company Surrender
Request.
(e) Letter of Credit Waiver. Immediately upon receipt from the Company or
Acquiror of a Letter of Credit Waiver (as defined in the Merger Agreement),
Escrow Agent will surrender the Letter of Credit to the Issuing Bank for
cancellation, or if the Escrow Agent shall have already drawn on the Letter of
Credit pursuant to Section 2(b), pay the proceeds of the Letter of Credit to
Acquiror. Upon such surrender or payment, this Agreement will terminate.
6 Liability of Escrow Agent. Escrow Agent's duties and obligations under this
Agreement will be determined solely by the express provisions of this Agreement.
Escrow Agent will be under no obligation to refer to any documents other than
this Agreement and the instructions and requests delivered to Escrow Agent
hereunder. Escrow Agent will not have any duties or responsibilities except as
expressly provided in this Agreement. Escrow Agent will not be obligated to
recognize, and will not have any liability or responsibility arising under, any
agreement to which Escrow Agent is not a party, even though reference thereto
may be made herein. With respect to Escrow Agent's responsibility, the Company
and Acquiror further agree that:
A-VI-2
(a) Escrow Agent will have no liability by reason of any error of judgment
or for any act done or step taken or omitted by Escrow Agent, or for any
mistake of fact or law or anything which Escrow Agent may do or refrain from
doing in Agent's gross negligence, bad faith or willful misconduct. Escrow
Agent may consult with counsel of its own choice (other than counsel for
Acquiror or the Company or any of their affiliates) and will have full and
complete authorization and protection for any action taken or suffered by
Escrow Agent hereunder in good faith and in accordance with the opinion of
such counsel. The reasonable costs of such counsel's services will be paid to
Escrow Agent in accordance with paragraph 7. The Company and Acquiror will
jointly indemnify and hold Escrow Agent harmless from and against any and all
liability and expense which may arise out of any action taken or omitted by
Escrow Agent in accordance with this Agreement, except for such liability and
expenses which results from Escrow Agent's gross negligence, bad faith or
willful misconduct.
(b) The Company or Acquiror may examine the Escrow Agent's records
pertaining to this Agreement at any time during normal business hours at
Escrow Agent's office upon 24 hours' prior notice.
(c) This Agreement is a personal one, Escrow Agent's duties hereunder being
only to the other parties hereto, their successors, permitted assigns and
legal representatives, and to no other Person.
(d) No succession to, or assignment of, the interest of Acquiror or the
Company will be binding upon the Escrow Agent unless and until written
evidence of such succession or assignment, in form satisfactory to Escrow
Agent, has been filed with and accepted by Escrow Agent.
(e) Escrow Agent may rely or act upon requests or instructions signed by the
proper parties or bearing a signature or signatures reasonably believed by
Escrow Agent to be genuine of the proper parties.
(f) In case any emergency held by Escrow Agent will be attached, garnished
or levied upon under a court order, or the delivery thereof will be stayed or
enjoined by a court order, or any writ, order, judgment or decree will be made
or entered by any court, or any order, judgment or decree will be made or
entered by any court affecting the property deposited under this Agreement or
any party thereof, Escrow Agent is hereby expressly authorized, in its sole
discretion, to obey and comply with all writs, orders, judgments or decrees so
entered or issued, whether or with or without jurisdiction, and in case Escrow
Agent obeys or complies with any such writ, order, judgment or decree, Escrow
Agent will not be liable to Acquiror or the Company or to any other Person by
reason of such compliance in connection with such litigation, and the Company
and Acquiror jointly and severally agree to pay to Escrow Agent on demand its
reasonable costs, attorneys' fees, charges, disbursements and expenses in
connection with such litigation.
(g) Subject to the terms of this paragraph 6(g), Escrow Agent reserves the
right to resign at any time by giving written notice of resignation to
Acquiror and the Company specifying the effective date thereof. Within 30 days
after receiving such notice, Acquiror and the Company jointly will appoint a
successor escrow agent to which Escrow Agent may distribute the property then
held hereunder, less Escrow Agent's accrued fees and reasonable costs and
expenses. Escrow Agent hereby agrees to use commercially reasonable efforts to
comply with the Issuing Bank's conditions for transfer of the Letter of Credit
to a successor escrow agent. If a successor escrow agent has not been
appointed or has not accepted such appointment by the end of such 30-day
period, Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent, and Acquiror and the Company will pay
the reasonable costs, expenses and attorneys' fees which are incurred in
connection with such proceeding. Notwithstanding the above, if a transfer of
the Letter of Credit is prohibited by this terms, or if the Letter of Credit
does not expressly permit a subsequent holder to draw on such Letter of
Credit, then Escrow Agent shall not deliver the Letter of Credit to the clerk
for any such court, but instead either (i) Acquiror shall arrange for the
replacement of such Letter of Credit with another Letter of Credit permitting
such transfer and permitting the subsequent holder to draw on the replacement
Letter of Credit in accordance with the terms hereof and as specified in the
replacement Letter of Credit (which shall be on the same terms and conditions
contained in the Letter of Credit), in which event the Escrow Agent may
deposit such replacement Letter of Credit with the clerk of any such court, or
(ii) the Escrow Agent shall draw on such non-transferable Letter of Credit and
deliver the proceeds to the clerk of such court.
A-VI-3
(h) Escrow Agent does not have any interest in the escrow fund, but is
serving as escrow holder only and has possession thereof. If any payments of
income from the escrow fund will be subject to withholding regulations then in
force with respect to United States taxes, Acquiror and the Company agree to
provide Escrow Agent with appropriate forms for or with respect to such
withholder. This paragraph 6(h) and paragraphs 6(a), 6(f), 6(g) and 7 will
survive notwithstanding any termination of this Agreement or Escrow Agent's
resignation.
7 Compensation of Escrow Agent. Escrow Agent will be entitled to a reasonable
fee for services rendered and for reimbursement of extraordinary expenses
incurred in performance of its duties, which extraordinary expenses are not
included in said fee. Said fee and expenses will be divided equally between
Acquiror, on the one hand, and the Company, on the other hand.
8 Notices. All notices, requests, demands, claims and other communications
hereunder ("Notices") will be in writing, personally delivered or sent by
facsimile and addressed to the intended recipient as set forth below:
Notices to the Company:
Citicasters Inc.
Suite 000
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which will not constitute notice to the Company) to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to Acquiror:
Jacor Communications, Inc.
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Mr. Xxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which will not constitute notice to Acquiror) to:
Xxxxxxx, Head & Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
A-VI-4
and to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to Escrow Agent:
PNC Bank, Ohio, N.A.
000 Xxxx Xxxxx Xxxxxx
Corporate Trust Department
Third Floor
Cincinnati, OH 45202
Attention: Xxxx Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any notices will be deemed to have been given pursuant to this Agreement when
personally delivered or sent by facsimile (electronically confirmed). Any party
may change the address to which Notices are to be delivered by giving the other
parties notice in the manner provided in this paragraph 8.
9 Binding Effect: Assignment. This Agreement and all of the provisions hereof
will be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
10 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the term
of this Agreement, such provision will be fully severable; this Agreement will
be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part of this Agreement; and the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid, or unenforceable provision or by its
severance from this Agreement.
11 No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any Person.
12 Headings. The headings used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and will not be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement will be enforced and construed
as if no heading had been used in this Agreement.
13 Counterparts. This Agreement may be executed in two or more counterparts,
any one of which need not contain the signatures of more than one Person, but
all such counterparts taken together will constitute one and the same
instrument.
14 Governing Law. This Agreement will be governed by and construed in
accordance with the domestic laws of the State of Ohio, without giving effect
to any choice of law or conflict of law provision (whether of the State of
Ohio or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Ohio.
15 Number. Each defined term used in this Agreement has a comparable meaning
used in its plural or singular form.
A-VI-5
16 Including. Whenever the term "including" (whether or not that term is
followed by the word "but not limited to" or "without limitation" or words of
similar effect) is used in this Agreement in connection with a listing of items
within a particular classification, that listing will be interpreted to be
illustrative only and will not be interpreted as a limitation on, or exclusive
listing of, the items within that classification.
17 Termination. If the Letter of Credit (other than a Letter of Credit that
is replaced by a Replacement Letter of Credit) is cancelled pursuant to the
terms of this Agreement, then this Agreement will terminate. This Agreement
shall survive any termination of the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
JACOR COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxxxxxx
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Its: President
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CITICASTERS INC.
By: /s/ Xxxxxx X. Xxxxx
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Its: Senior Vice President
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PNC BANK, OHIO, N.A., as Escrow Agent
By: /s/ Xxxx X. Xxxxxx
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Its: Bank Officer
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A-VI-6
EXHIBIT A
[TO COME]
A-VI-7
