1
Exhibit 2.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement"), dated as of ,
1996, is made by and among Jacor Communications, Inc., an Ohio corporation
("Acquiror"), Citicasters, Inc., a Florida corporation (the "Company"), and
[Star Bank, National Association], 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 (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
2
$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.
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,
2
3
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 0 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 0 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 0, 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 0,
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 0, then this Agreement will terminate.
(c) Actions upon Company Payment Request. Upon receipt from the
Company of a Company Payment Request pursuant to paragraph 0, Escrow Agent will
immediately (and in any event within one business day) give Acquiror notice of
such Company
3
4
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 0, 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) 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 0. 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
4
5
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 0, 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
5
6
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.
(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 0 and paragraphs 0, 0, 0 and 0 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,
6
7
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: [Need Fax Number]
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
and to:
7
8
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:
[Star Bank, National Association]
--------------------------------
--------------------------------
Attention: ---------------------
Phone: -------------------------
Facsimile: [Need Fax Number]
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 0.
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
8
9
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.
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 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.
[ACQUIROR]
By:
----------------------------------
Its:
----------------------------------
CITICASTERS INC.
9
10
By:
----------------------------------
Its:
----------------------------------
[STAR BANK, NATIONAL ASSOCIATION]
as Escrow Agent
By:
----------------------------------
Its:
----------------------------------
10
11
EXHIBIT A
[To Come]
11
