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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is entered
into as of February 20, 1996, by and between JACOR COMMUNICATIONS, INC., an Ohio
corporation ("Buyer") and NOBLE BROADCASTING GROUP, INC. a Delaware corporation
("Company"), under the following circumstances:
A. Buyer and the Company entered into an Investment Agreement
of even date herewith (the "Investment Agreement"), pursuant to which Buyer has
purchased a Warrant to purchase shares of Class A Stock of the Company and was
granted certain registration rights.
B. The Class A Stock is convertible to Class B Stock pursuant
to the Certificate.
C. As a material inducement to Buyer to enter into the
Investment Agreement and to purchase the Warrant, the Company agreed to provide
the registration rights set forth in this Agreement, and the execution of this
Agreement is a condition to the "Closing" under the Investment Agreement.
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 "CERTIFICATE" means the Restated Certificate of
Incorporation of the Company dated February 20, 1996 and
designating the terms of the Class A Shares and Class B Shares.
1.1.3 "COMMON SHARES" means the shares of common stock
authorized by the Certificate, including the Class A Shares,
Class B Shares, and any additional shares of common stock which
may be authorized in the future by the Company, and any stock
into which such Common Shares may hereafter be changed; and
shall also include stock of the Company of any other class
which is not preferred as to dividends or assets over any other
class of stock of the Company and which is not subject to
redemption.
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1.1.4 "COMMISSION" means the United States Securities and
Exchange Commission.
1.1.5 "CLASS A SHARES" means the Class A Common Shares having
the rights, restrictions, privileges and preferences set forth
in the Certificate.
1.1.6 "CLASS B SHARES" means the Class B Common Shares having
the rights, restrictions, privileges and preferences set forth
in the Certificate.
1.1.7 "INVESTMENT AGREEMENT" means the Investment Agreement of
even date herewith, by and between the Company and Buyer, or
any successor agreement between such parties.
1.1.8 "NASD" means National Association of Securities Dealers,
Inc.
1.1.9 "REGISTRABLE SECURITIES" means the following securities
which are owned by the Buyer or by a direct assignee of the
Buyer: (i) Class A Shares; (ii) Class B Shares; and (iii) the
stock or other securities of the Company issued and outstanding
in a stock split or reclassification of, or a stock dividend or
other distribution on or in substitution or exchange for, or in
a merger or consolidation involving the Company, or a sale of
all or substantially all of the Company's assets in exchange
for, or otherwise in connection with, the securities described
in clause (i) and (ii) above.
1.1.10 "SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time.
1.1.11 "TRIGGERING EVENT" has the meaning ascribed to it in
[SECTION 10.1] of the Investment Agreement.
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ARTICLE 2
REGISTRATION OF STOCK
2.1.REQUIRED REGISTRATION. If, at any time after the earlier of
(i) the occurrence of a Triggering Event or (ii) the completion of an initial
public offering of securities by the Company, the Company shall receive a
written request therefor from the record holder or holders of an aggregate of at
least 30% of the shares of Registrable Securities, the Company shall as promptly
as possible prepare and file a registration statement under the Securities Act
covering the number of Common Shares of the Registrable Securities which are the
subject of such requests and shall use its best efforts to cause such
registration statement to become effective. In addition, upon the receipt of
such request, the Company shall promptly give written notice to all other record
holders of shares of Registrable Securities that such registration is to be
effected. The Company shall include in such registration statement such Common
Shares for which it has received written requests to register by such other
record holders of Registrable Securities within 30 days after the Company's
written notice to such other record holders. In the event that the holders of a
majority of the Registrable Securities for which registration has been requested
pursuant to this Section determine for any reason not to proceed with a
registration at any time before the registration statement has been declared
effective by the Commission, and such registration statement, if theretofore
filed with the Commission, is withdrawn with respect to the Common Shares
covered thereby, and the holders of such Common Shares agree to bear their own
expenses incurred in connection therewith and to reimburse the Company for the
expenses incurred by it attributable to the registration of such Common Shares,
then the holders of such Common Shares shall not be deemed to have exercised a
right to require the Company to register Common Shares pursuant to this Section
at the expense of the Company. If a registration statement filed by the Company
at the request of holders of Registrable Securities pursuant to this Section is
withdrawn at the initiative of the Company, then the holders of Registrable
Securities shall not be deemed to have exercised a right to require the Company
to register Common Shares pursuant to this Section.
The managing underwriter of an offering registered pursuant to
this Section shall be selected by the holders of a majority of the Registrable
Securities for which registration has been requested and shall be reasonably
acceptable to the Company. Without the written consent of the holders of a
majority of the Registrable Securities for which registration has been requested
pursuant to this Section, neither the Company nor any other holder of securities
of the Company may include securities in such registration if, in the good faith
judgment of the managing underwriter of such public offering, the inclusion of
such securities would interfere with the successful marketing of the Common
Shares or require the exclusion of any portion of the Common Shares to be
registered.
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If the managing underwriter determines that all shares proposed
for registration cannot be included in the public offering, then the shares to
be excluded shall be determined in the following order of priority (i) shares
proposed to be sold by officers and directors of the Company (other than
Registrable Securities), (ii) shares proposed to be sold, by the Company, (iii)
shares other than Registrable Securities held by third parties, and (iv) shares
held by Buyer.
The Company shall pay the expenses described in SECTION 2.5 for
the first three registration statements filed pursuant to this SECTION 2.1 which
become effective and the holders of the Registrable Securities included in any
subsequent registration statement filed pursuant to this SECTION 2.1 shall pay
the expenses associated herewith.
2.2. INCIDENTAL REGISTRATION. Each time the Company shall
determine to proceed with the actual preparation and filing of a registration
statement under the Securities Act in connection with the proposed offer and
sale for money of any of its securities by it or any of its security holders
(other than a registration statement on Forms X-0, X-0, or other limited purpose
form), the Company will give written notice of its determination to all record
holders of Registrable Securities. Upon the written request of a record holder
of any shares of Registrable Securities given within 30 days after receipt of
any such notice from the Company, the Company will, except as herein provided,
cause all Common Shares of the Registrable Securities, the record holders of
which have so requested registration thereof, to be included in such
registration statement, all to the extent requisite to permit the sale or other
disposition by the prospective seller or sellers of the Common Shares to be so
registered; provided, however, that nothing herein shall prevent the Company
from, at any time, abandoning or delaying any registration; provided, further,
however, that if the Company determines not to proceed with a registration after
the registration statement has been filed with the Commission and the Company's
decision not to proceed is primarily based upon the anticipated public offering
price of the securities to be sold by the Company, the Company shall promptly
complete the registration for the benefit of those selling security holders who
wish to proceed with a public offering of their securities and who bear all
expenses in excess of $25,000 incurred by the Company as the result of such
registration after the Company has decided not to proceed (provided that, at the
sole discretion of the holders of the Registrable Securities included in the
registration, such registration may count as a registration under SECTION 2.1
for which the Company will pay the expenses). If any registration pursuant to
this Section shall be underwritten, in whole or in part, the Company may require
that the Common Shares requested for inclusion pursuant to this Section be
included in the underwriting agreement on the same terms and conditions as the
securities otherwise being sold through the underwriters. If, in the good faith
judgment of the managing underwriter of such public offering, the inclusion of
all of the Common Shares originally covered by a request for registration would
reduce the number of shares to be offered by the Company or interfere with the
successful marketing of the shares of stock offered by the Company, the number
of Common Shares to be included in the underwritten public offering (other than
shares sought to be sold by the Company) may be reduced in accordance with the
priority schedule
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set forth in SECTION 2.1. Those Common Shares which are thus excluded from the
underwritten public offering shall be withheld from the market by the holders
thereof for a period, not to exceed 180 days, which the managing underwriter
reasonably determines is necessary in order to effect the underwritten public
offering.
2.3. SHORT FORM REGISTRATION. In addition to the registration
rights provided in SECTION 2.1 and SECTION 2.2, if the Company qualifies for the
use of Form S-3 or any similar registration form then in force, the Company
shall, at its expense, at the request of any holder of Registrable Securities,
from time to time, register Common Shares of the Registrable Securities on
behalf of such holder on such form. The Company shall give notice to the holders
of Registrable Securities who did not join in such request and afford them a
reasonable opportunity to do so. The holders of Registrable Securities may not
request more than two registrations under this SECTION 2.3.
2.4. REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions of SECTION 2.1, SECTION 2.2 or SECTION 2.3 to effect
the registration of shares of Registrable Securities under the Securities Act,
the Company will:
2.4.1 prepare and file with the Commission a registration
statement with respect to such securities, and use its best
efforts to cause such registration statement to become and
remain effective for such period as may be reasonably necessary
to effect the sale of such securities, not to exceed nine
months;
2.4.2 prepare and file with the Commission such amendments to
such registration statement and supplements to the prospectus
contained therein as may be necessary to keep such registration
statement effective for such period as may be reasonably
necessary to effect the sale of such securities, not to exceed
nine months;
2.4.3 furnish to the security holders participating in such
registration and to the underwriters of the securities being
registered such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in
order to facilitate the public offering of such securities;
2.4.4 use its best efforts to register or qualify the
securities covered by such registration statement under such
state securities or blue sky laws of such jurisdictions as such
participating holders may reasonably request within 20 days
following the original filing of such registration statement,
except that the Company shall not for any purpose be required
to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
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2.4.5 notify the security holders participating in such
registration, promptly after it shall receive notice thereof,
of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of
such registration statement has been filed;
2.4.6 notify such holders promptly of any request by the
Commission for the amending or supplementing of such
registration statement or prospectus or for additional
information;
2.4.7 prepare and file with the Commission, promptly upon the
request of any such holders, any amendments or supplements to
such registration statements or prospectus which, in the
opinion of counsel for such holders (and concurred in by
counsel for the Company), is required under the Securities Act
or the rules and regulations thereunder in connection with the
distribution of the Registrable Securities by such holder;
2.4.8 prepare and promptly file with the Commission and
promptly notify such holders of the filing of such amendment or
supplement to such registration statement or prospectus, as may
be necessary to correct any statements or omissions if, at the
time when a prospectus relating to such securities is required
to be delivered under the Securities Act, any event shall have
occurred as a result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement
of a material fact or fail to state any material fact necessary
to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
2.4.9 advise such holders, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its
withdrawal, if such stop order should be issued;
2.4.10 not file any amendment or supplement to such
registration statement or prospectus to which a majority in
interest of such holders shall have reasonably objected on the
grounds that such amendment or supplement does not comply in
all material respects with the requirements of the Securities
Act or the rules and regulations thereunder, after having been
furnished with a copy thereof at least five (5) business days
prior to the filing thereof, unless in the opinion of counsel
for the Company the filing of such amendment or supplement is
reasonably necessary to protect the Company from any
liabilities under any applicable federal or state law, and such
filing will not violate applicable law; and
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2.4.11 at the request of any such holder, furnish on the
effective date of the registration statement and, if such
registration includes an underwritten public offering, at the
closing provided for in the underwriting agreement: (i)
opinions, dated such respective dates, of the counsel
representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the holder or
holders making such request, covering such matters as such
underwriters and holder or holders may reasonably request; and
(ii) letters, dated such respective dates, from the independent
certified public accountants of the Company, addressed to the
underwriters, if any, and to the holder or holders making such
request, covering such matters as such underwriters and holder
or holders may reasonably request, in which letters such
accountants shall state (without limiting the generality of the
foregoing) that they are independent certified public
accountants within the meaning of the Securities Act and that
in the opinion of such accountants the financial statements and
other financial data of the Company included in the
registration statement or any amendment or supplement thereto
comply in all material respects with the applicable accounting
requirements of the Securities Act.
The holders of Registrable Securities participating in any
registration of securities pursuant to this Agreement agree to provide necessary
information for inclusion in the registration statement concerning themselves,
their securities and their proposed manner of distribution on a timely basis,
agree to act in good faith and to not unreasonably delay or hinder a
registration and, if the registration is underwritten, agree to enter into a
reasonably required underwriting agreement.
2.5. EXPENSES. With respect to the first three registrations
requested pursuant to SECTION 2.1 (except as otherwise provided in such Section
with respect to registrations voluntarily terminated at the request of the
requesting security holders) and with respect to each inclusion of shares of
Registrable Securities in a registration statement pursuant to SECTION 2.2, and
all registrations requested pursuant to SECTION 2.3, the Company shall bear the
following fees, costs and expenses: all registration, filing and NASD fees,
printing expenses, fees and disbursements of counsel and accountants for the
Company and all legal fees and disbursement and other expenses of complying with
state securities or blue sky laws of any jurisdictions in which the securities
to be offered are to be registered or qualified. Fees and disbursements of
counsel and accountants for the selling security holders, underwriting discounts
and commissions and transfer taxes for selling security holders and any other
expenses incurred by the selling security holders not expressly included above
shall be borne by the selling security holders.
2.6. INDEMNIFICATION.
2.6.1 The Company will indemnify and hold harmless each holder
of shares of Registrable Securities which are included in a
registration statement
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pursuant to the provisions of this ARTICLE 2 and any
underwriter (as defined in the Securities Act) for such holder
and each person, if any, who controls such holder or such
underwriter within the meaning of the Securities Act, from and
against any and all loss, damage, liability, cost and expense
to which such holder or any such underwriter or controlling
person may become subject under the Securities Act or
otherwise, insofar as such losses, damages, liabilities, costs
or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in
which they were made, not misleading; provided, however, that
the Company will not be liable in any such case to the extent
that any such loss, damage, liability, cost or expense arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity
with information furnished by such holder, such underwriter or
such controlling person in writing specifically for use in the
preparation thereof.
2.6.2 Each holder of shares of Registrable Securities which are
included in a registration pursuant to the provisions of this
ARTICLE 2 will indemnify and hold harmless the Company, any
controlling person and any underwriter from and against any and
all loss, damage, liability, cost or expense to which the
Company or any controlling person and/or any underwriter may
become subject under the Securities Act or otherwise, insofar
as such losses, damages, liabilities, costs or expenses are
caused by any untrue or alleged untrue statement of any
material fact contained in such registration statement, any
prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was so made in reliance upon and
in strict conformity with written information furnished by such
holder specifically for use in the preparation thereof.
2.6.3 Promptly after receipt by an indemnified party pursuant
to the provisions of SECTION 2.6.1 or SECTION 2.6.2 of this
Section of notice of the commencement of any action involving
the subject matter of the foregoing indemnity provisions, such
indemnified party will, if a claim thereof is to be made
against the indemnifying party pursuant to the provisions of
said SECTION 2.6.1 or SECTION 2.6.2, promptly notify the
indemnifying party of the
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commencement thereof; but the omission to so notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than hereunder.
In case such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, if the defendants in any
action include both the indemnified party and the indemnifying
party and there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the
indemnified party, the indemnified party or parties shall have
the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party pursuant to the provisions of said SECTION
2.6.1 or SECTION 2.6.2 for any legal or other expense
subsequently incurred by such indemnified party in connection
with the defense thereof, other than reasonable costs of
investigation, unless (i) the indemnified party shall have
employed counsel in accordance with the provision of the
preceding sentence; (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
the notice of the commencement of the action; or (iii) the
indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party.
ARTICLE 3
RULE 144 AND 144A
The Company will, from and after such time as it has securities
registered pursuant to Section 12 of the Securities Exchange Act of 1934, or has
securities registered pursuant to the Securities Act, as such rules may be
amended from time to time, make timely filing of such reports as are required to
be filed by it with the Commission so that Rule 144 and 144A under the
Securities Act, as such rules may be amended from time to time, will be
available to the security holders of the Company who are otherwise able to take
advantage of the provisions of such Rule.
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ARTICLE 4
MISCELLANEOUS
4.1. NO INCONSISTENT AGREEMENTS. The Company will not on or
after the date of this Agreement enter into any agreement with respect to its
securities which shall grant registration rights to any person with respect to
securities of the Company which are senior to or are in conflict with (or which
will interfere with the practical realization of) the rights provided under this
Agreement, except with the prior written consent of the holders of a majority of
the Registrable Securities.
4.2. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of the holders
of Registrable Securities to include such securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration.
4.3. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
holders of a majority of the Registrable Securities.
4.4. 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:
4.4.1 If to if to a holder of Registrable Securities at the
most current address given by such holder to the Company in
accordance with the provisions of this SECTION 4.4, which
address initially is the address set forth below:
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
4.4.2 If to the Company:
Noble Broadcast Group, Inc.
0000 Xxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: (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. Xxxxxxx 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.
4.5. 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.
4.6. 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.
4.7. 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).
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4.8. 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.
4.9. ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein, and the Prior Investors
hereby acknowledge that all other registration rights which they had prior to
the execution of this Agreement have been cancelled by virtue of this Agreement.
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:__________________________
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