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INVESTMENT AGREEMENT
This Investment Agreement ("Agreement") is entered into as of
February 20, 1996, by and between (A) JACOR COMMUNICATIONS, INC., an Ohio
corporation ("Buyer"); (B) NOBLE BROADCAST GROUP, INC. a Delaware corporation
("Company"); (C) XXXX X. XXXXX ("Xxxxx"); (D) XXXXX X. DE FRANCESCO ("De
Francesco"); (E) XXXXXX X. XXXXXXX ("Xxxxxxx"); (F) XXXXXXX X. XXXXXX
("Arbenz"), under the following circumstances:
A. Buyer desires to purchase a Warrant on the terms and
conditions set forth herein.
B. Company is willing to issue the Warrant to Buyer on the
terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual promises
herein made, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used herein, the following terms
shall have the meanings ascribed to them below.
1.1.1 "ACCREDITED INVESTOR" has the meaning ascribed to it in
Regulation D of the Securities and Exchange Commission (Rule
501(a)) and the Ohio Securities law.
1.1.2 "AFFILIATE" has the meaning ascribed to it in Rule 12b-2
of Regulation 12B under the Securities Exchange Act of 1934, as
amended.
1.1.3 "ARBENZ" means Xxxxxxx X. Xxxxxx.
1.1.4 "BFI" means Broadcast Finance, Inc., an Ohio corporation.
1.1.5 "BLH" means Bankers Life Holding Corporation, a Delaware
corporation.
1.1.6 "BUYER" means Jacor Communications, Inc., an Ohio
corporation.
1.1.7 "CHASE" means The Chase Manhattan Bank, N.A.
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1.1.8 "CHASE DEBT" means all obligations of the Company or any
of its Subsidiaries pursuant to a Credit Agreement, dated as of
August 18, 1995, among the Company, NBH, the lenders party
thereto in their capacities as lenders thereunder and Chase, as
agent (and any successor agent thereunder), together with the
related documents thereto.
1.1.9 "CHASE WARRANT" means the warrant to acquire 1,000 shares
of common stock of NBH issued pursuant to a Warrant Agreement
dated as of August 18, 1995, between NBH and Chase.
1.1.10 "CIHC" means CHIC, Incorporated, a Delaware corporation.
1.1.11 "CLASS A SHAREHOLDER(S)" means Prudential and Northeast
(each referred to herein individually as a "Class A
Shareholder", and together as the "Class A Shareholders").
1.1.12 "CLASS A STOCK" means the Class A convertible common
stock of Company.
1.1.13 "CLASS B SHAREHOLDER(S)" means Xxxxx, De Francesco,
Xxxxxxx and Arbenz (each referred to herein individually as a
"Class B Shareholder", and collectively as the "Class B
Shareholders")
1.1.14 "CLASS B STOCK" means the Class B voting common stock of
Company.
1.1.15 "CLOSING" has the meaning ascribed to it in SECTION 9.1
of this Agreement.
1.1.16 "COMPANY" means Noble Broadcasting Group, Inc., a
Delaware corporation.
1.1.17 "COMPANY REPRESENTATIONS AND WARRANTIES" has the meaning
ascribed to it in SECTION 3 of this Agreement.
1.1.18 "CONSECO DEBT" means all obligations of the Company
under or with respect to the Subordinated Notes whether for
principal, interest (including, without limitation, interest,
as provided in the Subordinated Notes, accruing after the
filing of a petition of bankruptcy), premium, fees, expenses,
indemnification or any other amounts owing on or with respect
thereto.
1.1.19 "CONSECO INVESTMENT AGREEMENT" means the Noble Broadcast
Group Investment Agreement between the Company and Conseco,
Inc., an Indiana corporation, dated August 18, 1998.
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1.1.20 "CONSECO WARRANT" means warrants to acquire Class A
Stock issued pursuant to the Conseco Investment Agreement.
1.1.21 "COVENANT BREACH" has the meaning ascribed to it in
Section 6.2.4 of the Stock Agreement.
1.1.22 "DAMAGES" means all losses, costs, damages, liabilities
and expenses which cause economic detriment to the damaged
party, including reasonable attorneys' fees and expenses.
1.1.23 "DE FRANCESCO" means Xxxxx X. De Francesco.
1.1.24 "DISCLOSURE LETTER" has the meaning ascribed to it in
SECTION 4 of the Stock Agreement.
1.1.25 "ENDORSEMENTS" has the meaning ascribed to it in SECTION
1.1.14 of the Stock Escrow.
1.1.26 "ESCROW AGENT" means The Fifth Third Bank, an Ohio
banking corporation.
1.1.27 "FCC" means the Federal Communications Commission.
1.1.28 "FCC APPROVAL" means any FCC approval required in
connection with a transaction, including, but not limited to,
FCC approval of any transfer of control to the Holder of any
FCC License, resulting from (i) exercise of the Warrant to
acquire Class A Stock; (ii) conversion of Class A Stock issued
upon the exercise of the Warrant to Class B Stock; or (iii)
assignment of all or part of the Warrant to one or more third
parties as the Holder may designate; if such a transfer of
control would require FCC approval under then existing law
(including the Communications Act or the written policies,
rules and regulations promulgated by the FCC).
1.1.29 "FCC LICENSE" means any license, permit or other
authorization issued by the FCC.
1.1.30 "HOLDER" means the holder of the Warrant.
1.1.31 "HOLDER RIGHTS" means the Holder's right to (i) have
Class A Stock issued upon exercise by the Holder of the
Warrant; or (ii) convert Class A Stock issued upon the exercise
of the Warrant to Class B Stock.
1.1.32 "XXXXXXX" means Xxxxxx X. Xxxxxxx .
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1.1.33 "XXXXX" means Xxxx X. Xxxxx.
1.1.34 "NBH" means Noble Broadcast Holdings, Inc., a Delaware
corporation.
1.1.35 "NEW CREDIT AGREEMENT" means the Credit Agreement
between BFI and the Company of even date herewith pursuant to
which the Company shall have obtained a secured loan facility
from BFI.
1.1.36 "NEW SECURITIES" means any authorized but unissued or
treasury shares of the Company, notes or other evidences of
indebtedness of the Company or any other securities of the
Company, including but not limited to options, warrants or
other convertible securities, except for (a) any offer, sale or
issuance of options pursuant to an employee stock option plan
approved by Buyer or any Common Shares issuable upon exercise
of such options; (b) any offer, sale or issuance of notes or
other evidences of indebtedness (not convertible to an equity
security) in connection with a secured loan transaction with a
bank or other financial institution; or (c) any offer, sale or
issuance of shares, notes, evidences of indebtedness and other
securities of the Company offered for sale or issuance in
connection with a public offering of such securities registered
under the Securities Act.
1.1.37 "NORTHEAST" means Northeast Ventures, II, a limited
partnership.
1.1.38 "OTHER GOVERNMENTAL APPROVALS" means any approvals
required from the Federal Trade Commission, the United States
Department of Justice, or any other federal, state, or local
governmental approvals, required to be obtained before a Holder
may lawfully exercise Holder Rights or any other rights Holder
may have pursuant to this Agreement.
1.1.39 "PRUDENTIAL" means Prudential Venture Partners II, L.P.,
a limited partnership.
1.1.40 "REGISTRATION RIGHTS AGREEMENT" means the Registration
Rights Agreement between the Company and Buyer dated as of
February 1, 1996.
1.1.41 "RESTATED ARTICLES" means the Restated Certificate of
Incorporation of the Company attached to this Agreement as
Exhibit 2.4.
1.1.42 "SECURITIES ACT" means the Securities Act of 1933, as
amended.
1.1.43 "STOCK AGREEMENT" means the Stock Purchase and Stock and
Warrant Redemption Agreement of even date herewith among (i)
the Buyer; (ii) the Class A Shareholders; (iii) the Class B
Shareholders; (iv) the Warrant Sellers; and (v) Company.
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1.1.44 "STOCK CLOSING" has the meaning ascribed to it in
SECTION 12.1.1 of the Stock Agreement.
1.1.45 "STOCK ESCROW" means the Stock Escrow and Security
Agreement of even date herewith among (i) the Buyer; (ii) the
Class B Shareholders; (iv) the Trustee; and the Escrow Agent.
1.1.46 "STOCK PURCHASE PRICE" has the meaning ascribed to it in
SECTION 1.2 of the Stock Agreement.
1.1.47 "SUBORDINATED NOTES" means the $37 million in
Subordinated Notes of the Company issued by the Company
pursuant to the Conseco Investment Agreement.
1.1.48 "SUBSIDIARY" shall mean any corporation, association,
partnership, joint venture or other business entity of which
the Company and/or any Subsidiary of the Company either (a) in
respect of a corporation, owns or controls, directly or
indirectly, fifty percent (50%) or more of the outstanding
stock having ordinary voting power to elect a majority of the
board of directors or similar managing body, irrespective of
whether or not a class or classes shall or might have voting
power by reason of the happening of any contingency, or (b) in
respect of an association, partnership, joint venture or other
business entity, is entitled to share in more than fifty
percent (50%) of the profits and losses, however determined.
1.1.49 "TRIGGERING EVENTS" has the meaning ascribed to it in
SECTION 10.1 of this Agreement.
1.1.50 "TRUSTEE" means Xxxxxx X. Xxxxx as trustee under the
Trust Agreement.
1.1.51 "TRUST AGREEMENT" means the Trust Agreement dated
February 20, 1996, among Xxxxx, De Francesco, Xxxxxxx, and
Arbenz, and their respective spouses, as co-grantors, and the
Trustee in the form of EXHIBIT 1.1.40 to the Stock Escrow.
1.1.52 "WARRANT" means the Warrant issued pursuant to this
Agreement to purchase Class A Stock in an amount equal to 79.1%
of the outstanding common stock of the Company calculated on a
fully-diluted post-exercise basis as of the time of exercise.
1.1.53 "WARRANT SELLER(S)" means CIHC and BLH (each referred to
herein individually as a "Warrant Seller", and together as the
"Warrant Sellers").
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1.1.54 "WARRANT PURCHASE PRICE" has the meaning ascribed to it
in SECTION 2.1 of this Agreement.
ARTICLE 2
PURCHASE OF SECURITIES
SECTION 2.1 PURCHASE AND SALE OF WARRANT. Upon and subject to
the other terms and conditions of this Agreement, the Company shall sell to
Buyer and Buyer shall purchase from the Company the Warrant for a purchase price
of $52,775,170.32 (the "Warrant Purchase Price"), which the parties agree is the
fair value of the Warrant.
SECTION 2.2. MANNER OF PAYMENT OF PURCHASE PRICE. At Closing,
Buyer shall pay the Warrant Purchase Price to the Company by wire transfer of
funds in accordance with wiring instructions provided by the Company to Buyer
prior to the Closing, against delivery of the duly authorized and executed
Warrant to Buyer.
SECTION 2.3. TERMS OF WARRANT. The Warrant shall be in the form
of and have the same terms as EXHIBIT 2.3 attached hereto.
SECTION 2.4. TERMS OF CLASS A STOCK. The Class A Stock shall
have the rights, preferences and terms set out in the Restated Articles.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce Buyer to enter into this Agreement and to purchase
the Warrant, the Company hereby makes all of the representations and warranties
to Buyer that the Company is making to Buyer in the Stock Agreement (the
"Company Representations and Warranties"). Unless otherwise specifically
provided herein or in the Stock Agreement, the Company Representations and
Warranties shall be true and correct in all respects as of the date hereof
subject to the provisions of the Stock Agreement regarding the expiration
thereof and changes expressly contemplated by the Stock Agreement. Certain
Company Representations and Warranties are qualified, as indicated in the Stock
Agreement, by information disclosed in the Disclosure Letter.
ARTICLE 4
COVENANTS
In order to induce Buyer to enter into this Agreement and to
purchase the Warrant, the Company agrees to abide by all Company covenants set
forth in SECTION 6.2.1 and SECTION 6.2.2 of the Stock Agreement and SECTION 5
and SECTION 6 of the New Credit
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Agreement. The Company further agrees to provide to the Holder all information
and reports that the Company is required to provide to BFI. In addition, the
Company agrees to the following:
SECTION 4.1. USE OF PROCEEDS. The proceeds received at Closing
from the sale of the Warrant to Buyer hereunder, together with other funds
available to the Company, shall be used by the Company:
4.1.1 To repay $53,460,163.19 of Chase Debt, which payment
shall retire the Chase Debt in full and shall also cause the
Chase Warrant to be cancelled without further charge to the
Company;
4.1.2 To repay $38,195,124.46 of the Conseco Debt; and
4.1.3 To redeem in full the Conseco Warrant for a redemption
price of $44,766,721.76.
SECTION 4.2 COOPERATION IN OBTAINING FCC APPROVAL OR OTHER
GOVERNMENTAL APPROVALS. At any time the Holder determines that it is desirable
to obtain FCC Approval and/or Other Governmental Approval with respect to the
exercise by Holder of any Holder Rights or any other rights Holder may have
pursuant to this Agreement, then the Company shall take any action which the
Holder may request to permit Holder to obtain such FCC Approval and/or Other
Governmental Approval. The Company agrees to cooperate fully with the Holder and
any assignee of all or part of the Warrant in the preparation, execution and
filing of any applications or other documents and providing any information that
may be necessary or helpful in obtaining FCC Approval and/or Other Governmental
Approval. The Company agrees to consent to any transfer of control to the Holder
of any FCC License upon the request of the Holder after a Triggering Event.
ARTICLE 5
BOARD OF DIRECTOR PROVISIONS
Provided that each director's election complies with the
Communications Act of 1934, as amended, and the rules and polices of the FCC in
effect at such time, then until such time as the Holder ceases to own the
Warrant or Class A Stock, the Company agrees as follows:
SECTION 5.1 COMPOSITION OF BOARD OF DIRECTORS. The Board of
Directors of the Company shall consist of seven (7) members who shall be elected
as follows:
5.1.1 Six (6) members of the Board of Directors shall be
elected by the holders of the Class B Stock, and two such
directors shall be independent
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directors whose independence is confirmed (at any election of
directors) by the Holder, which confirmation shall not be
unreasonably withheld.
5.1.2 One (1) member of the Board of Directors may, at the
option of the Holder, be elected by the Holder. The Holder
shall provide to the Corporation written notice of the Holder's
election to exercise its right to elect a director pursuant to
this Section 5.1.2 not less than 48 hours prior to the time the
election is scheduled to be held. If the Holder does not
exercise Holder's option to elect a director, then said
position shall remain vacant until filled by action of the
Holder. In the event of the death, resignation, or removal of
any director elected by the Holder, the Holder shall be
entitled to elect that director's successor. Notwithstanding
the foregoing, a director elected by the Holder shall be
excluded from presentations to, discussions by and decisions of
the Board of Directors of the Company involving proprietary
information relating to the operations of any of Company's
radio stations to the extent that the rules, policies,
conditions or orders of the FCC in effect at such time would
require the operation of such radio stations to be separate
from, in whole or in part, from radio stations in the same
market attributed to Holder. In the event there is more than
one Holder, and the Holders exercise their right to elect a
director pursuant to this Section 5.1.2, such director shall be
elected by a majority vote of such Holders, voting as a class.
SECTION 5.2 HOLDER REPRESENTATIVE. Whether or not the Holder
exercises the Holder's option to elect a director pursuant to SECTION 5.1
hereof, the Holder shall be entitled to appoint a representative who shall be
permitted to attend all meetings of the Board of Directors; provided, however,
such representative shall attend meetings of the Board of Directors as an
observer only, and shall have no right to vote on any matter that may come
before the Board of Directors for a vote. The Holder shall provide to the
Corporation written notice of the name and address of the Holder's
representative and shall be entitled to appoint a different representative at
any time by providing written notice to such effect to the Corporation. Such
representative shall be given the same notice of any meeting of the Board of
Directors as is required to be provided to a member of the Board of Directors.
Notwithstanding the foregoing, Holder's representative shall be excluded from
presentations to, discussions by and decisions of the Board of Directors of the
Company involving proprietary information relating to the operations of any of
Company's radio stations to the extent that the rules, policies, conditions or
orders of the FCC in effect at such time would require the operation of such
radio stations to be separate from, in whole or in part, from radio stations in
the same market attributed to Holder.
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ARTICLE 6
PREEMPTIVE RIGHTS OF BUYER
If any of the following actions may be taken by a Holder
without the requirement of FCC Approval and/or Other Governmental Approval, or
if such FCC Approval and/or Other Governmental Approval has been previously
obtained, until such time as Buyer and its transferees cease to own the Warrant
or Class A Stock or Class B Stock; upon any offer, sale or issuance for cash or
other property, indebtedness or any combination thereof, by the Company of New
Securities, then Holder shall have the first right to subscribe to and purchase
such New Securities at a price and on such other terms and conditions as are no
less favorable to Holder than those on which the New Securities will be offered,
sold or issued to other persons. Holder shall have the option to purchase up to
such portion of the New Securities as shall equal Holder's pro rata ownership of
the common stock of the Company (assuming for purposes of this calculation the
full exercise of the Warrant). The Company shall give written notice to Holder
of any and each opportunity for exercise of its rights under this ARTICLE 6,
setting forth the price of such New Securities and the number of such New
Securities that Holder is entitled to purchase. Such notice shall be delivered
to Holder at the address for the Holder then shown in the records of the
Company, and Holder may exercise its rights to purchase such New Securities by
written notice thereof delivered to the Company at its principal office not
later than 10 business days following the date on which notice of such rights
was received by Holder.
ARTICLE 7
INVESTMENT REPRESENTATIONS AND LEGENDS
SECTION 7.1. PURCHASE FOR INVESTMENT. Buyer represents and
warrants that the Warrant purchased by it pursuant to the terms and conditions
of this Agreement are being acquired by Buyer for investment, for Buyer's own
account, and not with a view to the distribution or resale thereof. Buyer
understands that the Warrant purchased may not be sold or transferred unless
subsequently registered under the Securities Act, and any applicable state
securities laws, or unless exemptions from registration under such laws are
available. Buyer represents and warrants that it is an Accredited Investor and
that the Company has made available to it the opportunity to ask questions and
receive answers concerning the Company, the Warrant and to otherwise conduct the
due diligence Buyer sought to conduct in connection with Buyer's investment
decision.
SECTION 7.2. TRANSFER LEGENDS AND RESTRICTIONS. Buyer
acknowledges that the Warrant and shares issuable upon exercise of the Warrant
shall be imprinted with a legend in substantially the following form (unless
otherwise permitted under this Agreement):
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED, OR ASSIGNED EXCEPT (I) PURSUANT TO REGISTRATIONS
THEREOF UNDER SUCH LAWS, OR (II) IF, IN THE OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE COMPANY, THE PROPOSED TRANSFER MAY
BE EFFECTED WITHOUT SUCH REGISTRATIONS.
Upon the request of Holder, the Company shall remove any such legend from
certificates held by Holder, or shall issue to Holder new securities, which
shall be free of such transfer legend, provided that with such request, the
Company shall have received an opinion of counsel selected by Holder, which
opinion and counsel are reasonably satisfactory to the Company, to the effect
that no transfer by Holder of the Warrant and shares issuable upon exercise of
the Warrant will violate the Securities Act or applicable state securities laws.
SECTION 7.3. INTERCOMPANY TRANSFERS. SECTION 7.1 and SECTION
7.2 notwithstanding, the Buyer may freely transfer the Warrant, Class A Stock
and Class B Stock to an Affiliate of Buyer so long as such transferee is bound
by the provisions of this ARTICLE 7.
ARTICLE 8
CONDITIONS OF BUYER'S OBLIGATIONS
The obligations of Buyer under this Agreement are, at the
option of Buyer, subject to satisfaction prior to or at the Closing of all
conditions set forth in SECTION 9.2 of the Stock Agreement and in addition the
following conditions shall have been fulfilled:
SECTION 8.1. AMENDMENT OF CERTIFICATE OF INCORPORATION AND
BYLAWS. The Company shall have amended and restated its Certificate of
Incorporation as set forth in EXHIBIT 2.4 attached to this Agreement and shall
have amended and restated its Bylaws as set forth in EXHIBIT 8.1 attached to
this Agreement.
SECTION 8.2. EXECUTION OF REGISTRATION RIGHTS AGREEMENTS. The
Company shall have executed and delivered the Registration Rights Agreement.
ARTICLE 9
CLOSING
SECTION 9.1. CLOSING DATE. The closing of the purchase and sale
of the Warrant (the "Closing") shall take place at 9:00 a.m. on February 20,
1996 at the offices of Xxxxxxx, Head & Xxxxxxx in Cincinnati, Ohio, or at such
other time and place as the parties shall agree.
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SECTION 9.2. DELIVERIES BY THE COMPANY. At or prior to the
Closing, all closing deliveries required by SECTION 10.2 of the Stock Agreement
shall have been delivered, and in addition, the Company shall deliver to Buyer
the following items:
9.2.1 The Warrant as specified in SECTIONS 2.1 of this
Agreement; and
9.2.2 The Registration Rights Agreement, duly executed by the
Company and its shareholders, as specified in SECTION 1.1.40 of
this Agreement.
ARTICLE 10
TRIGGERING EVENTS; GOVERNMENTAL APPROVALS
SECTION 10.1. TRIGGERING EVENTS. Any one or more of the
following events shall be considered a Triggering Event:
10.1.1 A Covenant Breach occurs which causes Damages that
exceed the portion of the Stock Purchase Price to be paid at
the Stock Closing (but only to the extent that such Damages
exceed $500,000); or
10.1.2 The Stock Closing shall have occurred; or
10.1.3 At the Stock Closing the Escrow Agent fails for any
reason to deliver to Buyer certificates representing all Class
B Stock of the Company and the Endorsements; or
10.1.4 The Trustee shall have failed to prepare and deliver to
the Escrow Agent substitute Endorsements as required pursuant
to the Stock Escrow and the Trust Agreement; or
10.1.5 (i) Company, (ii) any Subsidiary; and/or (iii) any Class
B Shareholder becomes insolvent or bankrupt, or admits in
writing its or his inability to pay its or his debts as they
mature, or makes an assignment for the benefit of creditors, or
applies for or consents to the appointment of a trustee or
receiver for all or a major part of its assets; or
10.1.6 bankruptcy, reorganization, arrangement, or insolvency
proceedings, or other proceedings for relief under any
bankruptcy or similar law or laws for the relief of debtors,
are instituted by or against the (i) Company, (ii) any
Subsidiary; and/or (iii) any Class B Shareholder, and if
instituted are consented to or are not dismissed within thirty
(30) days after such institution; or
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10.1.7 a trustee or receiver is appointed for the assets of (i)
Company, (ii) any Subsidiary; and/or (iii) any Class B
Shareholder, and such appointment is not dismissed within
thirty (30) days; or
10.1.8 the Company fails within thirty (30) days from the entry
thereof to discharge or have vacated or effectively stayed any
final judgment for the payment of money in excess of $150,000
which shall be rendered against it or any Subsidiary.
SECTION 10.2. GOVERNMENTAL APPROVALS.
10.2.1 FCC APPROVAL. Upon the occurrence of a Triggering Event,
the Holder may exercise Holder Rights; provided, however, the
Holder shall first obtain any necessary FCC Approval. Prior to
obtaining FCC Approval, the Holder will not take any action
pursuant to this Agreement or the Warrant which would
constitute or result in any transfer of control to the Holder
of any FCC License. The Holder shall be entitled to rely upon
the advice of FCC counsel of the Holder's choice with respect
determining whether any action taken by the Holder pursuant to
this Agreement would result in a transfer of control requiring
FCC Approval. To the extent the Holder obtains advice from FCC
counsel that any action proposed to be taken by the Holder
pursuant to this Agreement following the occurrence of a
Triggering Event does not require FCC Approval, the Holder may
immediately exercise Holder Rights.
10.2.2 OTHER GOVERNMENTAL APPROVAL. Upon the occurrence of a
Triggering Event, the Holder may exercise Holder Rights;
provided, however, the Holder shall first obtain any necessary
Other Governmental Approval. Prior to obtaining such Other
Governmental Approval, the Holder will not exercise Holder
Rights or any other rights Holder may have pursuant to this
Agreement which would cause a violation of law. To the extent
the Holder obtains advice from counsel that any action proposed
to be taken by the Holder pursuant to this Agreement following
the occurrence of a Triggering Event does not require Other
Governmental Approval, the Holder may immediately exercise
Holder Rights or any other rights Holder may have pursuant to
this Agreement.
SECTION 10.3. NOTICE. When any Triggering Event has occurred,
the Company shall immediately give written notice thereof to the Holder. The
Company shall also promptly notify Holder of any event which could reasonably
become a Triggering Event with the lapse of time or otherwise promptly after
obtaining knowledge thereof.
SECTION 10.4. SPECIFIC PERFORMANCE. The parties hereto declare
that it is impossible to measure in money the damages which will accrue to
Holder by reason of a
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breach or violation of any representation, warranty, agreement or covenant
contained in this Agreement. Therefore, Holder may institute any action or
proceeding to specifically enforce and cause the parties hereto to remedy a
breach of a provision of this Agreement and any party against whom such action
or proceeding is brought hereby waives the claim or defense therein that such
party has an adequate remedy at law. Furthermore, such party shall not urge in
any such action or proceeding the claim or defense that such remedy at law
exists.
SECTION 10.5. CUMULATIVE REMEDIES AND SURVIVAL. The remedies
specified in this Agreement shall not be exclusive of any other remedy, and
shall be cumulative and in addition to every other remedy now or hereafter
existing at law or in equity or by statute or otherwise which may be available
to Holder.
ARTICLE 11
CLASS B SHAREHOLDERS
SECTION 11.1. COVENANTS OF CLASS B SHAREHOLDERS. The Class B
Shareholders covenant and agree to take all necessary actions to cause the
Company to fulfill its covenants and agreements contained in this Agreement.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. POST-CLOSING ACTIONS. If at any time, and from
time to time, after the Closing any party 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 by this Agreement, the parties agree to execute and deliver all
such instruments and take all such actions as may be reasonably necessary or
advisable for such purpose.
SECTION 12.2. ENTIRE AGREEMENT; AMENDMENT. This Agreement
contains the entire agreement among the parties hereto and supersedes all prior
oral or written agreements, promises, representations, commitments or
understandings with respect to the matters provided for herein. This Agreement
may be modified or amended only by a writing duly executed by Buyer and the
Company which modification or amendment shall be binding upon all of the parties
hereto.
SECTION 12.3. CERTAIN INTERPRETIVE MATTERS AND DEFINITIONS.
Unless the context otherwise requires: (A) all references to Sections, Articles,
Schedules or Exhibits are to Sections, Articles, Schedules or Exhibits of or to
this Agreement; (B) each term defined in this Agreement has the meaning assigned
to it; (C) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with
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generally accepted accounting principles as in effect on the date hereof; (D)
"or" is disjunctive but not necessarily exclusive; (E) words in the singular
include the plural and vice versa; and (F) all references to "$" or dollar
amounts will be to lawful currency of the United states of America.
SECTION 12.4. NO INTENDED THIRD PARTY BENEFICIARIES. Nothing
herein expressed or implied is intended or shall be construed to confer upon or
give to any person or entity other than the parties hereto and their successors
or permitted assigns, any rights or remedies under or by reason of this
Agreement.
SECTION 12.5. ASSIGNMENT AND BINDING EFFECT. This Agreement and
the rights and obligations of the Company hereunder may not be assigned by the
Company without the prior written consent of Buyer. Buyer shall have the right
to assign all or any portion of its rights and obligations under this Agreement.
All covenants, agreements, statements, representations, warranties and
indemnities in this Agreement by and on behalf of any of the parties hereto
shall bind and inure to the benefit of their respective successors and permitted
assigns of the parties hereto.
SECTION 12.6. WAIVERS. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a continuing waiver, and no
waiver shall be binding unless executed in writing by the party making the
waiver.
SECTION 12.7. NOTICES. All notices, demands or other
communications which may be or are required to be given by any party to any
other party pursuant to this Agreement, shall be in writing and shall be mailed
by certified mail, return receipt requested, postage prepaid, or transmitted by
hand delivery, national overnight express, telegram or facsimile transmission,
addressed as follows:
SECTION 12.8 If to Buyer:
Jacor Communications, Inc.
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Xxxxxxx, Head & Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
SECTION 12.9 If to the Company:
0000 Xxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Xxxxx X. De Francesco
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx, Xxxx Xxxx & Freidenrich
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: J. Xxxxxxxx X'Xxxxxx, Esq.
Fax: (000) 000-0000
until such time as either party notifies the other of a change of address. Each
notice or other communication which shall be mailed, delivered or transmitted in
the manner described above shall be deemed sufficiently given and received for
all purposes at such time as it is delivered to the addressee (with the return
receipt, the delivery receipt, or the affidavit of messenger or telefax
transmission log being deemed conclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
SECTION 12.10. HEADINGS. The article and section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 12.11. SEVERABILITY. Wherever possible, each provision
of this Agreement will be interpreted so as to be effective and valid under
applicable law, but if any provision of this Agreement is prohibited by or
invalid under such law, such provision will be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
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SECTION 12.12. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of Ohio (but not
including the choice-of-laws rules thereof).
SECTION 12.13. COUNTERPARTS; EXECUTION. This Agreement 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.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement, or caused this Agreement to be executed on its behalf, as of the
date first above written.
JACOR COMMUNICATIONS, INC.
By:___________________________
Its:__________________________
NOBLE BROADCASTING GROUP, INC.
By:___________________________
Its:__________________________
______________________________
XXXX X. XXXXX
______________________________
XXXXX X. DE FRANCESCO
______________________________
XXXXXX X. XXXXXXX
______________________________
XXXXXXX X. XXXXXX
[Signature Page for Investment Agreement]
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