FIRST AMENDMENT TO
STOCK PURCHASE AND STOCK AND WARRANT REDEMPTION AGREEMENT
This First Amendment (this "Amendment") to that certain Stock Purchase and
Stock and Warrant Redemption Agreement dated as of February 20, 1996 by and
among Jacor Communications, Inc., an Ohio corporation ("Buyer"), Prudential
Venture Partners II, L.P., a limited partnership, Northeast Ventures, II, a
limited partnership, Xxxx X. Xxxxx ("Xxxxx"), Xxxxx X. De Francesco ("De
Francesco"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxxx X. Xxxxxx ("Arbenz," and
together with Xxxxx, De Francesco and Xxxxxxx, the "Class B Shareholders"), CIHC
Incorporated, a Delaware corporation, Bankers Life Holding Corporation, a
Delaware corporation, and Noble Broadcast Group, Inc., a Delaware corporation
(the "Company") (the "Stock Purchase Agreement"), is entered into as of July 8,
1996 by and among Buyer, the Company, Xxxxx, De Francesco, Xxxxxxx, Arbenz and
Xxxxxxx X. Xxxxx as trustee ("Trustee"). Unless specifically designated
otherwise, capitalized terms used herein shall have the same meanings ascribed
to them in the Stock Purchase Agreement.
RECITALS
A. As provided in the Stock Purchase Agreement, at the Redemption Closing
the Class B Shareholders entered into that certain Stock Escrow and Security
Agreement, dated as of February 20, 1996, by and among Buyer, the Company, the
Class B Shareholders, Trustee and The Fifth Third Bank as escrow agent ("Stock
Escrow Agent") (the "Stock Escrow and Security Agreement"). Pursuant to the
Stock Escrow and Security Agreement, the Class B Shareholders deposited into
escrow all of the Class B Stock owned by the Class B Shareholders, along with
related stock transfer documents to be held and distributed by the Stock Escrow
Agent as provided therein.
B. Pursuant to the terms of the Stock Escrow and Security Agreement, on
February 28, 1996 (the "Substitution Date"), subsequent to receipt of FCC
Approval (as defined in the Stock Escrow and Security Agreement), the Class B
Shareholders transferred their Class B Stock to the Trustee, and the Stock
Escrow Agent registered the Class B Stock in the name of the Trustee. On the
Substitution Date, the Trustee prepared, executed and delivered to the Escrow
Agent substitute Endorsements (as defined in the Stock Escrow and Security
Agreement) in favor of Buyer.
C. The Stock Purchase Agreement and the Stock Escrow and Security
Agreement together require the following actions to be taken upon the
occurrence of the Stock Closing: (i) Buyer to pay for the benefit of the
Trustee and the Class B Shareholders, as beneficiaries of the Trust Agreement
dated February 20, 1996, among Xxxxx, De Francesco, Xxxxxxx, and Arbenz, and
their respective spouses, as co-grantors, and the Trustee (the "Trust
Agreement") the Net Stock Purchase Payment by delivering the same to the
Stock Escrow Agent, who in turn (assuming that there is then no Defaulting
Stock Seller, as defined in the Stock Escrow and Security Agreement) is
required to pay such amount to the Shareholder's Representative on behalf of
the Trustee and for the benefit of the Class B Shareholders, as beneficiaries
under the Trust Agreement; and (ii) the Trustee (or the
Stock Escrow Agent, on the Trustee's behalf) to deliver the Class B Stock to the
Buyer, properly endorsed or accompanied by stock powers sufficient for, as
applicable, the transfer of good and marketable title to the Class B Stock to
Buyer on the books of the Company.
D. The parties desire to amend the Stock Purchase Agreement to provide
for and to effect a closing prior to the Stock Closing pursuant to which: (i)
the Trustee will sell to Buyer fourteen and nine-tenths percent (14.9%) of the
shares of Class B Stock (the "Advance Class B Stock"); and (ii) in consideration
for the Advance Class B Stock, Buyer will pay to the Class B Shareholders, at
the direction of the Trustee and the Shareholders Representative, fourteen and
nine-tenths percent (14.9%) of the Stock Purchase Price (the "Advance Stock
Purchase Price"), all according to the terms and subject to the conditions set
forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree to amend and modify the Stock Purchase Agreement as set forth
below:
1. PURCHASE AND SALE OF ADVANCE STOCK.
1.1. PURCHASE AND SALE. At the Advance Stock Closing (as defined in
Section 3 below), upon all of the terms and subject to all of the conditions set
forth herein, the Trustee will sell, assign, transfer and deliver to Buyer, and
Buyer will purchase from the Trustee, thirty-seven thousand eight hundred
forty-nine (37,849) of the issued and outstanding shares of Advance Class B
Stock currently held by Stock Escrow Agent, of which: (i) thirty-four thousand
one hundred forty-five (34,145) shares are attributable to Xxxxx; (ii) three
thousand three hundred two (3,302) shares are attributable to De Francesco;
(iii) two hundred one (201) shares are attributable to Arbenz; and (iv) two
hundred one (201) shares are attributable to Xxxxxxx.
1.2. ADVANCE STOCK PURCHASE PRICE: ALLOCATION OF ADVANCE STOCK
PURCHASE PRICE.
1.2.1. In consideration for receiving good and marketable
title to the Advance Class B Stock, free and clear of all liens, charges,
encumbrances and restrictions of any kind, Buyer shall pay to the Class B
Shareholders, at the direction of the Trustee and Shareholders Representative
made hereby, on behalf of the Class B Shareholders, as beneficiaries of the
Trust Agreement, the Advance Stock Purchase Price equal to One Million Eight
Hundred Fifty-Eight Thousand Three Hundred Twenty-Nine Dollars and Twenty-Nine
Cents ($1,858,329.29), of which: (i) One Million Six Hundred Seventy-Six
Thousand Five Hundred Three Dollars and Eighty-Five Cents ($1,676,503.85) is
attributable to Xxxxx; (ii) One Hundred Sixty-Two Thousand One Hundred Two
Dollars and Eighty-Eight Cents ($162,102.88) is attributable to De Francesco;
(iii) Nine Thousand Eight Hundred Sixty-One Dollars and Twenty-Eight Cents
($9,861.28) is attributable to Arbenz; and
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(iv) Nine Thousand Eight Hundred Sixty-One Dollars and Twenty-Eight Cents
($9,861.28) is attributable to Xxxxxxx. The Advance Stock Purchase Price shall
be paid at the Advance Stock Closing by wire transfer of funds in accordance
with wiring instructions provided by the Shareholders Representative to Buyer
prior to the Advance Stock Closing.
1.2.2. The allocation of the Advance Stock Purchase Price
among the Class B Shareholders shall be as set forth in Section 1.2.1 above;
PROVIDED, HOWEVER, that Buyer's obligations with respect to payment of the
Advance Stock Purchase Price shall terminate upon confirmation of receipt of the
wired funds, and Buyer shall have no obligation or liability to the Trustee or
any Class B Shareholder with respect to the ultimate distribution of such
payment among the Class B Shareholders.
1.3. STOCK PURCHASE PRICE: NET STOCK PURCHASE PAYMENT. Upon the
completion of the Advance Stock Closing, the amount of the Stock Purchase Price
and the amount of the Net Stock Purchase Payment (but not the amount of the
Stock Purchase Escrow Consideration, which shall remain unaffected by this
Amendment) shall be reduced by the amount of the Advance Stock Purchase Price
and for purposes of the executory provisions of the Stock Purchase Agreement
shall be allocated as set forth on SCHEDULE 1 attached hereto.
1.4. STOCK ESCROW AND SECURITY AGREEMENT. Notwithstanding anything to
the contrary set forth above, the delivery of the Advance Class B Stock from the
Trustee to Buyer and the payment of the Advance Stock Purchase Price by Buyer to
the Class B Shareholders shall be administered by the Stock Escrow Agent
pursuant to that certain First Amendment to Stock Escrow and Security Agreement
of even date herewith by and among the parties to the Stock Escrow and Security
Agreement. In the event that there is any discrepancy between the terms and
conditions hereof and the terms and conditions of the First Amendment to Stock
Escrow and Security Agreement regarding such transfer and delivery, the terms
and conditions of the First Amendment to Stock Escrow and Security Agreement
shall prevail.
2. CONDITIONS TO ADVANCE STOCK CLOSING.
2.1. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE CLASS B
SHAREHOLDERS AT THE ADVANCE STOCK CLOSING. The obligation of the Trustee to
sell, assign, transfer and deliver the Class B Stock, as applicable, to Buyer
pursuant to Section 1 hereof is subject to the fulfillment, simultaneously with
the execution hereof, of each of the following conditions:
2.1.1. Buyer shall have delivered to the Class B Shareholders
a letter from Xxxxxxx, Head & Xxxxxxx, in form and substance reasonably
satisfactory to the Class B Shareholders, reaffirming as of the Advance Stock
Closing Date (as defined in Section 3 hereof) each of the opinions rendered by
such firm in the opinion letter referred to in Section 9.1.11 of the Stock
Purchase Agreement.
2.1.2. Buyer shall have delivered the Advance Stock Purchase
Price in
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accordance with the wiring instructions provided by Shareholders Representative
pursuant to Section 1.2.1 above.
2.2. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER AT THE ADVANCE
STOCK CLOSING. The obligation of Buyer to purchase the Advance Class B Stock
from the Class B Shareholders pursuant to Section 1 hereof is subject to the
fulfillment, simultaneously with the execution hereof, of each of the following
conditions:
2.2.1. The Company and the Class B Shareholders shall have
delivered to Buyer a letter from Xxxx Xxxx Xxxx & Freidenrich, in form and
substance reasonably satisfactory to Buyer, reaffirming as of the Advance Stock
Closing Date each of the opinions rendered by such firm in the opinion letter
referred to in Section 9.2.16 of the Stock Purchase Agreement.
2.2.2. The Company and the Class B Shareholders shall have
delivered to Buyer a letter from Haley, Bader & Xxxxx, in form and substance
reasonably satisfactory to Buyer, reaffirming as of the Advance Stock Closing
Date each of the opinions rendered by such firm in the opinion letter referred
to in Section 9.2.17 of the Stock Purchase Agreement.
2.2.3. The Trustee (or the Stock Escrow Agent, as appropriate)
shall have delivered to Buyer certificates representing all of the Advance Class
B Stock, either registered in the name of the Buyer or properly endorsed or
accompanied by stock powers sufficient for, as applicable, the transfer of good
and marketable title to the Advance Class B Stock to Buyer on the books of the
Company.
3. ADVANCE STOCK CLOSING. The purchase and sale of the Advance Class B
Stock contemplated in Section 1.1 above (the "Advance Stock Closing") shall
occur on the date hereof (the "Advance Stock Closing Date") and simultaneously
with the execution hereof, at __:00 a.m. eastern time in the offices of Xxxxxxx,
Head & Xxxxxxx in Cincinnati, Ohio or at such other place or in such other
manner as the parties hereto may agree in writing. In the event that the
parties conduct the Advance Stock Closing through the exchange of signatures by
facsimile, the parties agree to promptly provide original signature pages to all
of the documents delivered in connection with the Advance Stock Closing.
4. CONFIRMATION OF STOCK PURCHASE AGREEMENT: CONFLICT OF TERMS, FURTHER
ASSURANCES.
4.1. CONFIRMATION; CONFLICT. Except as expressly modified by this
Amendment, the terms and provisions of the Stock Purchase Agreement are hereby
reaffirmed. If and to the extent that any term or provision of this Amendment
conflicts with any term or provision of the Stock Purchase Agreement, then any
such term or provision of the Stock Purchase Agreement will be deemed to have
been supplemented and amended by the terms and provisions of this Amendment.
Such supplementation and amendment will be automatic and without the need for
further action or documentation by any of the parties.
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4.2. FURTHER ASSURANCES. Each party to this Amendment agrees that, if
at any time and from time to time after the date of this Amendment, any party
hereto reasonably determines that any further conveyance, assignment or other
document or any further action is necessary or desirable to carry out the
purposes of and to make effective the transactions contemplated in this
Amendment, the parties agree to execute and deliver all such instruments and to
take all such actions as may be reasonably necessary or advisable for such
purpose, including, but not limited to, causing appropriate third parties to
execute and deliver all such instruments and to take all such actions.
5. RESERVATIONS OF RIGHTS. The parties to this Amendment acknowledge and
agree that, except as expressly set forth in this Amendment, each of the parties
hereby reserves all such party's rights under and in connection with the Stock
Purchase Agreement, and nothing in this Amendment, including but not limited to
the occurrence of the Advance Stock Closing, shall constitute a waiver of any of
such party's rights under or in connection with the Stock Purchase Agreement, or
a waiver of any of the conditions to the Stock Closing set forth in the Stock
Purchase Agreement.
6. COUNTERPARTS. This Amendment may be executed in as many counterparts
as may be required, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but a
single agreement.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
"BUYER" "THE CLASS B SHAREHOLDERS"
JACOR COMMUNICATIONS, INC.,
an Ohio corporation
By: /s/ R. Xxxxxxxxxxx Xxxxx /s/ Xxxx X. Xxxxx
----------------------------------- -----------------------------------
XXXX X. XXXXX
"THE COMPANY" /s/ Xxxxx X. De Francesco
-----------------------------------
XXXXX X. DE XXXXXXXXX
XXXXX BROADCAST GROUP, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
--------------------------------
XXXX X. XXXXX, President
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxx, Trustee
-----------------------------------
XXXXXXX X. XXXXX, TRUSTEE
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
XXXXXXX X. XXXXXX
[COUNTERPART SIGNATURE PAGE TO FIRST AMENDMENT TO STOCK PURCHASE
AND STOCK AND WARRANT REDEMPTION AGREEMENT]
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SCHEDULE 1
ALLOCATION OF STOCK PRICE AMONG CLASS B
SHAREHOLDERS ADJUSTED FOR ADVANCE STOCK CLOSING
Stock Purchase
Advance Stock Escrow Net Stock
Purchase Price to be Consideration to Purchase Price
Gross Stock Paid at Advance be paid at Stock to be Paid at
Class B Shareholder Percentage Purchase Price Stock Closing Closing Stock Closing
----------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxx 0.902156496 $11,251,703.66 $1,676,503.85 $471,264.01 $9,103,935.80
Xxxxx X. De Francesco 0.087230438 $1,087,938.78 $162,102.88 $ 45,566.79 $ 880,269.11
Xxxxxxx X. Xxxxxx 0.005306532 $66,183.12 $9,861.28 $ 2,772.09 $ 53,549.75
Xxxxxx X. Xxxxxxx 0.005306532 $66,183.12 $9,861.28 $ 2,772.09 $ 53,549.75
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