1
STOCK ESCROW AND SECURITY AGREEMENT
This Stock Escrow and Security Agreement ("Agreement") is
entered into as February 20, 1996, by and among: (A) JACOR COMMUNICATIONS, INC.,
an Ohio corporation ("Buyer"); (B) XXXX X. XXXXX ("Xxxxx"); (C) XXXXX X. DE
FRANCESCO ("De Francesco"); (D) XXXXXX X. XXXXXXX ("Xxxxxxx"); (E) XXXXXXX X.
XXXXXX ("Arbenz"); (F) NOBLE BROADCAST GROUP, INC., a Delaware corporation
("Company"); (G) XXXXXXX X. XXXXX ("Trustee") and (H) THE FIFTH THIRD BANK, an
Ohio banking corporation (the "Escrow Agent"), under the following
circumstances:
X. Xxxxx, De Francesco, Xxxxxxx and Arbenz are the record and
beneficial owners of 100% of the issued Class B Stock.
B. Concurrently with the execution of this Agreement (i) the
Buyer; (ii) the Class A Shareholders; (iii) the Class B Shareholders; (iv) the
Warrant Sellers; and (v) the Company have entered into the Stock Agreement.
C. The Class B Shareholders have authorized the Sellers
Representative to act as their sole and exclusive agent in connection with this
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 "ARBENZ" means Xxxxxxx X. Xxxxxx.
1.1.2 "BLH" means Bankers Life Holding Corporation, a Delaware
corporation.
1.1.3 "BUYER" means Jacor Communications, Inc., an Ohio
corporation.
1.1.4 "BUYER NOTICE OF TERMINATION" means a written declaration
executed by the Buyer to the effect that the Stock Agreement
has been terminated by the Buyer pursuant to SECTION 13.1.2 OR
13.1.3 of the Stock Agreement.
1.1.5 "CIHC" means CIHC, Incorporated, a Delaware corporation.
2
1.1.6 "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").
1.1.7 "CLASS B SHAREHOLDER(S)" means Xxxxx, De Francesco,
Xxxxxxx and Arbenz, and upon FCC Approval and the consequent
registration of the Class B Stock in the name of the Trustee,
the Trustee (each referred to herein individually as a "Class B
Shareholder", and collectively as the "Class B Shareholders").
1.1.8 "CLASS B STOCK" means the Class B voting common stock of
the Company.
1.1.9 "COMPANY" means Noble Broadcast Group, Inc., a Delaware
corporation.
1.1.10 "DAMAGES" means all losses, costs, damages, liabilities
and expenses which cause actual economic detriment to the
damaged party, including reasonable attorneys' fees and
expenses.
1.1.11 "DEFAULTING STOCK SELLER" means (a) any Class B
Shareholder if with respect to such Class B Shareholder, or the
Class B Stock owned by Such Class B Shareholder, an Event of
Default occurs pursuant to SECTION 5.7 hereof, and (b) each
Class B Shareholder specified as a Defaulting Stock Seller in
SECTION 4.1 or SECTION 4.2 hereof.
1.1.12 "DEFAULTING STOCK SELLER OBLIGATION" means the
obligation of a Defaulting Stock Seller to return to Buyer such
Defaulting Stock Seller's proportionate share of the aggregate
Stock Purchase Price paid by Buyer at or before the Stock
Closing, together with any Damages incurred by Buyer as a
result of the failure of such Defaulting Stock Seller to
deliver the Class B Stock owned by such Defaulting Stock Seller
to Buyer on the Stock Closing Date, which Damages include, but
are not limited to, any increase in value of the Class B Stock
owned by the Defaulting Stock Seller between the date of this
Agreement and the date on which such Class B Stock is
liquidated in foreclosure of the security interest granted to
Buyer pursuant to this Agreement.
1.1.13 "DE FRANCESCO" means Xxxxx X. De Francesco.
1.1.14 "ENDORSEMENTS" means, with respect to each certificate
evidencing ownership of Class B Stock, either (a) an
endorsement, by the owner of such Class B Stock, with signature
guaranteed, on the certificate or certificates evidencing the
Class B Stock, sufficient to transfer title to such Class B
2
3
Stock to the Buyer, free and clear of all liabilities (absolute or
contingent) and Liens, upon delivery of such Class B Stock to the Buyer
by the Escrow Agent; or (b) a separate assignment executed by the owner
of such Class B Stock, with signature guaranteed, sufficient to
transfer title to such Class B Stock to the Buyer, free and clear of
all liabilities (absolute or contingent) and Liens, upon delivery of
such Class B Stock and separate assignment to the Buyer by the Escrow
Agent. Upon receipt of FCC Approval and upon the preparation by the
Escrow Agent of new share certificates evidencing ownership of all the
Class B Stock in the name of the Trustee, the Trustee shall prepare new
Endorsements with respect to each share certificate registered in the
name of the Trustee, and such new Endorsements shall be substituted for
the Endorsements previously held by the Escrow Agent.
1.1.15 "ESCROW AGENT" means The Fifth Third Bank, an Ohio
banking corporation.
1.1.16 "ESCROW AGENT INDEMNIFYING PARTIES" means collectively
each Class B Shareholder and Buyer.
1.1.17 "EVENT OF DEFAULT" has the meaning set forth in SECTION
5.7 hereof.
1.1.18 "FCC" means the Federal Communications Commission.
1.1.19 "FCC APPROVAL" means the approval granted by the FCC to
permit the Class B Shareholders to transfer the Class B Stock
owned by them to the Trustee pursuant to the Trust Agreement.
1.1.20 "FULL TERMINATION PAYMENT" has the meaning set forth in
SECTION 4.1 hereof.
1.1.21 "XXXXXXX" means Xxxxxx X. Xxxxxxx .
1.1.22 "LIENS" means any encumbrances, mortgages, pledges,
options, claims, proxies, and other security interests or
rights of others.
1.1.23 "XXXXX" means Xxxx X. Xxxxx.
1.1.24 "MUTUAL NOTICE OF TERMINATION" means a written
declaration executed by the Buyer and the Sellers
Representative to the effect that the Stock Agreement has been
terminated by mutual agreement of the Buyer and the Sellers (as
defined in the Stock Agreement) and instructing the Escrow
Agent regarding the final distribution of the Class B Stock and
Endorsements and termination of this Agreement.
3
4
1.1.25 "NORTHEAST" means NorthEast Ventures II, a partnership.
1.1.26 "NOTICE OF AGREED RELEASE" means a written declaration
executed by Buyer and the Sellers Representative specifying the
resolution of any Objection to any Notice of Termination, and
including directions to distribute to each Class B Shareholder
the Class B Stock owned by such Class B Shareholder.
1.1.27 "OBJECTION" means a written objection by Buyer to a
Seller Notice of Termination or a written objection by Sellers
Representative to a Buyer Notice of Termination or a Notice of
Partial Termination.
1.1.28 "NOTICE OF PARTIAL TERMINATION" means a written
declaration executed by the Buyer to the effect that the Buyer
has elected to purchase some but less than all of the Class B
Stock.
1.1.29 "PERSON" means any individual, firm, partnership, joint
venture, corporation, association, business enterprise, trust,
Governmental Body or other entity, whether acting in an
individual, fiduciary, or other capacity.
1.1.30 "PRUDENTIAL" means Prudential Venture Partners II, L.P.,
a limited partnership.
1.1.31 "SECURITIES ACT" means the Securities Act of 1933, as
then in effect (or any similar statute then in effect).
1.1.32 "SELLER NOTICE OF TERMINATION" means a written
declaration executed by the Sellers Representative to the
effect that the Stock Agreement has been terminated by Sellers
(as defined in the Stock Agreement pursuant to SECTION 13.1.1
of the Stock Agreement.
1.1.33 "SELLERS REPRESENTATIVE" means Xxxxx who has been
authorized by the Class B Shareholders to act as their sole and
exclusive agent in connection with this Agreement pursuant to
SECTION 9.6 hereof.
1.1.34 "STOCK CLOSING" has the meaning ascribed to it in
SECTION 12.1 of the Stock Agreement.
1.1.35 "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) the Company,
and any ancillary document referred to therein.
4
5
1.1.36 "STOCK PURCHASE PRICE" has the meaning ascribed to it in
SECTION 1.2 of the Stock Agreement.
1.1.37 "CLASS B SHAREHOLDER OBLIGATION" means the obligation of
a Class B Shareholder to transfer to Buyer in accordance with
the Stock Agreement the Class B Stock owned by such Class B
Shareholder on the Stock Closing Date.
1.1.38 "TERMINATION DATE" means the date this Agreement is
terminated pursuant to SECTION 8 hereof.
1.1.39 "TRUSTEE" means Xxxxxx X. Xxxxx as trustee under the
Trust Agreement.
1.1.40 "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.
1.1.41 "WARRANT SELLER(S)" means CIHC and BLH (each referred to
herein individually as a "Warrant Seller", and together as the
"Warrant Sellers").
SECTION 2
APPOINTMENT OF ESCROW AGENT
2.1 APPOINTMENT. The Class B Shareholders and the Buyer
hereby appoint the Escrow Agent to serve as escrow agent, and the Escrow Agent
hereby accepts the appointment to act as escrow agent upon the terms, conditions
and provisions of this Agreement. The Escrow Agent shall hold the Class B Stock
and the Endorsements with respect to such Class B Stock as the agent of the
Buyer pursuant to SECTION 5.2, and the Escrow Agent shall hold the Stock
Purchase Price when delivered by Buyer pursuant to SECTION 3.1 as the agent of
the Class B Shareholders.
The Company hereby appoints Escrow Agent as stock transfer
agent for the Company for the limited purpose of registering the transfer of the
Class B in the name of the Trustee, upon receipt of FCC Approval. The Company
has on the date of this Agreement provided Escrow Agent with sufficient blank
Class B Stock share certificates to permit the Escrow Agent, on the date FCC
Approval is obtained, to prepare one or more new certificates representing all
Class B Stock registered in the name of the Trustee and dated on the date of FCC
Approval, which new certificate or certificates shall continue to be held by the
Escrow Agent pursuant to this Agreement, and the Escrow Agent shall then cancel
the existing Class B Stock certificates registered in the names of Xxxxx, De
Francesco, Xxxxxxx and Arbenz and shall return such cancelled certificates to
the Company to be included in the Company's share records. On such date, the
Trustee shall prepare and
5
6
deliver to the Escrow Agent substitute Endorsements executed by the Trustee in
favor of Buyer.
2.2 ESCROW AGENT FEES. For its services hereunder, the
Escrow Agent shall be paid by fee in the amount set forth on Exhibit A to this
Agreement.
SECTION 3
ESCROWED CLASS B STOCK
3.1 DEPOSIT OF ESCROWED CLASS B STOCK. On the date of
this Agreement, each Class B Shareholder has deposited with the Escrow Agent the
Class B Stock owned by such Class B Shareholder and the Endorsements with
respect to such Class B Stock. The Escrow Agent hereby acknowledges receipt of
the Class B Stock and the Endorsements. At the Stock Closing, Buyer shall
deposit the Stock Purchase Price with the Escrow Agent. The Escrow Agent agrees
to hold the Class B Stock and the Stock Purchase Price in accordance with the
terms of this Agreement.
Upon receipt of FCC Approval, the Escrow Agent shall prepare
new certificates representing all Class B Stock registered in the name of the
Trustee and dated on the date of FCC Approval, which new certificates shall
continue to be held by the Escrow Agent pursuant to this Agreement, and the
Escrow Agent shall then cancel the existing Class B Stock certificates
registered in the names of Xxxxx, De Francesco, Xxxxxxx and Arbenz and shall
return such cancelled certificates to the Company to be included in the
Company's share records. On such date, the Trustee shall prepare and deliver to
the Escrow Agent substitute Endorsements executed by the Trustee in favor of
Buyer which new certificates and substitute Endorsements shall be held by Escrow
Agent in accordance with the terms of this Agreement.
3.2 COOPERATION. Each of the parties hereto shall
cooperate with the Escrow Agent and deliver to the Escrow Agent such additional
confirmations, certificates, affirmations, information and other documents as
the Escrow Agent shall reasonably request in the performance of its obligations
under this Agreement.
3.3 PURPOSE OF ESCROW. This escrow has been established
for the purpose of providing security to the Buyer for the performance by each
Class B Shareholder of such Class B Shareholder's Class B Shareholder Obligation
and for the performance of each Defaulting Stock Seller of such Defaulting Stock
Seller's Defaulting Stock Seller Obligation.
6
7
SECTION 4
NOTICES AND DISTRIBUTION OF
CLASS B STOCK AND STOCK PURCHASE PRICE
4.1 BUYER NOTICE OF TERMINATION. At any time during the
term of this Agreement Buyer may deliver to the Escrow Agent and to the Sellers
Representative a Buyer Notice of Termination and Sellers Representative shall
have fifteen (15) days following the date of receipt by the Escrow Agent of a
Buyer Notice of Termination to deliver an Objection to Buyer and the Escrow
Agent. If an Objection is received by Escrow Agent within such period, Escrow
Agent shall hold all assets and documents in its possession as set forth in
SECTION 4.6 hereof. Within fifteen (15) days following the date of receipt by
the Escrow Agent of a Buyer Notice of Termination, the Class B Shareholders
shall pay to the Escrow Agent the following sum (the "Full Termination
Payment"): (a) an amount equal to the Stock Purchase Price, plus (b) an amount
equal to interest on the sum specified in clause (a) at the rate per annum
announced by Banque Paribas to be its prime rate of interest from time to time
at its principal office in Chicago, Illinois from the date of this Agreement to
the date such sum is paid to Escrow Agent, compounded annually. If the Full
Termination Payment is delivered to the Escrow Agent within 15 days from the
date of the Escrow Agent's receipt of a Buyer Notice of Termination, and if no
Objection has been delivered to the Escrow Agent prior to delivery of the Full
Termination Payment to the Escrow Agent, then while the Class B Stock is
registered in the name of Xxxxx, De Francesco, Xxxxxxx and Arbenz, upon receipt
of the Full Termination Payment the Escrow Agent shall deliver to the Sellers
Representative the Class B Stock and the Endorsements, and the Escrow Agent
shall concurrently deliver the Full Termination Payment to Buyer; or when the
Class B Stock is registered in the name of the Trustee, upon receipt of the Full
Termination Payment the Escrow Agent shall deliver to the Trustee the Class B
Stock and the Endorsements, and the Escrow Agent shall concurrently deliver the
Full Termination Payment to Buyer. If the Full Termination Payment is not made
to the Escrow Agent within 15 days from the date of the Escrow Agent's receipt
of a Buyer Notice of Termination, and if no Objection is delivered to the Escrow
Agent and Buyer within (15) days following the date of receipt by the Escrow
Agent of a Buyer Notice of Termination, Escrow Agent shall Deliver the Class B
Stock and Endorsements to Buyer which Class B Stock shall continue to be held by
Buyer as security for each Defaulting Stock Seller Obligation; otherwise Escrow
Agent shall continue to hold those items pursuant to SECTION 4.6 hereof. If the
Full Termination Payment is not paid to the Escrow Agent within 15 days after
the date of the Escrow Agent's receipt of a Buyer Notice of Termination, all
Class B Shareholders shall be considered Defaulting Stock Sellers.
4.2 PARTIAL TERMINATION BY BUYER. At any time during
the term of this Agreement where the certificates representing Class B Stock
held by Escrow Agent are registered in the name of more than one Person, Buyer
may deliver to the Escrow Agent and to the Sellers Representative a Notice of
Partial Termination accompanied by the Stock Purchase Price allocated to the
Class B Stock which Buyer is purchasing as specified
7
8
in the Notice of Partial Termination. Upon receipt of such partial Stock
Purchase Price, Escrow Agent shall immediately deliver to Buyer the Class B
Stock which Buyer is purchasing as specified in the Notice of Partial
Termination, and the Endorsements for such Class B Stock. Sellers Representative
shall have fifteen (15) days following the date of receipt by the Escrow Agent
of a Notice of Partial Termination to deliver to the Escrow Agent and Buyer an
Objection. If no Objection is delivered to the Escrow Agent and Buyer within
(15) days following the date of receipt by the Escrow Agent of a Notice of
Partial Termination, Escrow Agent shall (a) deliver to Buyer the Class B Stock
which Buyer is not purchasing as specified in the Notice of Partial Termination,
and Endorsements for such Class B Stock; and such Class B Stock and Endorsements
shall continue to be held by Buyer as security for each Defaulting Stock Seller
Obligation, and (b) deliver to Sellers Representative the partial Stock Purchase
Price paid by Buyer for the Class B Stock which Buyer is purchasing as specified
in the Notice of Partial Termination, except that if Buyer has elected to
purchase the Class B Stock of any Class B Shareholder who is then a Defaulting
Stock Seller, Escrow Agent shall deal with the Purchase Price of such Class B
Stock as set forth in SECTION 4.7. If an Objection is delivered to the Escrow
Agent and Buyer within the permitted 15 day period, the Escrow Agent shall hold
the Class B Stock not purchased by Buyer as specified in the Notice of Partial
Termination, and the Endorsements for such Class B Stock, as set forth in
SECTION 4.6. Each Class B Shareholder whose Class B Stock is not purchased by
Buyer pursuant to this SECTION 4.2 is considered a Defaulting Stock Seller.
4.3 SELLER NOTICE OF TERMINATION. At any time during
the term of this Agreement Sellers Representative may deliver to the Escrow
Agent and to the Buyer a Seller Notice of Termination and Buyer shall have
fifteen (15) days following the date of receipt by the Escrow Agent of such
Seller Notice of Termination to deliver to the Escrow Agent and Sellers
Representative an Objection. If no Objection is delivered to the Escrow Agent
within (15) days following the date of receipt by the Escrow Agent of a Seller
Notice of Termination, Escrow Agent shall deliver the Class B Stock and
Endorsements to the Sellers Representatives and this Agreement shall terminate.
4.4 MUTUAL NOTICE OF TERMINATION. At any time during
the term of this Agreement, Buyer and Sellers Representative may deliver to the
Escrow Agent a Mutual Notice of Termination. Upon delivery to the Escrow Agent
of a Mutual Notice of Termination, the Escrow Agent shall comply with the
directions contained therein and upon such compliance, this Agreement shall
terminate.
4.5 NOTICE OF STOCK CLOSING. At any time during the
term of this Agreement, Buyer may deliver to the Escrow Agent a Notice of Stock
Closing accompanied by the Stock Purchase Price. Upon receipt of such Notice of
Stock Closing and the Stock Purchase Price, the Escrow Agent shall immediately
deliver to Buyer the Class B Stock and Endorsements held by Escrow Agent
pursuant to this Agreement, and if no Class B Shareholder is then a Defaulting
Stock Seller, the Escrow Agent shall simultaneously deliver
8
9
to the Sellers Representative the Stock Purchase Price. If any Class B
Shareholder is then a Defaulting Stock Seller, the Escrow Agent shall act in
accordance with SECTION 4.7.
4.6 DUTIES AFTER AN OBJECTION IS MADE. If an Objection
is timely submitted by Buyer or Sellers Representative as provided in this
SECTION 4, Buyer and the Sellers Representative shall review together such
Objection and shall attempt in good faith to resolve such Objection. Any
resolution shall be evidenced by a Notice of Agreed Release executed by Buyer
and the Sellers Representative. If, after receiving any notice described in this
SECTION 4, the Escrow Agent receives an Objection within the time period
provided for such Objection, the Escrow Agent shall hold all assets and
documents entrusted to it hereunder until the Escrow Agent receives a Notice of
Agreed Release, or until the Objection has been determined and resolved by entry
of a final order, decree or judgment by a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected),
or by consent to entry of any judgment concerning such Objection. In addition,
in the event any demand is made upon Escrow Agent concerning this Agreement,
Escrow Agent, at its election and in its sole discretion, may cause the assets
and documents then held by it to be delivered to a court of competent
jurisdiction to determine the rights of any Class B Shareholder and Buyer, or to
interplead any Class B Shareholder and Buyer by an action brought in any such
court. Deposit by Escrow Agent into such court of the assets and documents
delivered to Escrow Agent shall relieve Escrow Agent of all further liability
and responsibility in connection with this Agreement.
4.7 PURCHASE OF CLASS B STOCK FROM A DEFAULTING STOCK
SELLER. If, when Buyer purchases Class B Stock from any Class B Shareholder,
such person is a Defaulting Stock Seller, then the Escrow Agent shall
immediately deliver to Buyer the Class B Stock held by Escrow Agent pursuant to
this Agreement and Escrow Agent shall deliver to the Sellers Representative only
so much of the Stock Purchase Price as is payable to the Class B Shareholders
who are not Defaulting Stock Sellers and shall return the balance of the Stock
Purchase Price to the Buyer. Any Class B Stock owned by a Defaulting Stock
Seller delivered to Buyer by Escrow Agent pursuant to this SECTION 4.7 shall
continue to be held by Buyer as security for such Defaulting Stock Seller's
Defaulting Stock Seller Obligation. The Class B Shareholders acknowledge that if
any Class B Stock owned by a Defaulting Stock Seller is liquidated in
enforcement of Buyer security interest in such Class B Stock, Buyer's Damages
shall be at least equal to the entire proceeds received from the sale of such
Class B Stock upon foreclosure, plus the costs and expenses of Buyer in
enforcing such security interest, less the Stock Purchase Price attributable to
such Class B Stock, and that if the proceeds upon foreclosure are less than the
fair market value of such Class B Stock sold in foreclosure, Buyer's damages may
exceed the aforesaid amount.
9
10
SECTION 5
PLEDGE OF CLASS B STOCK
5.1 PLEDGE OF CLASS B STOCK. Each Class B Shareholder
hereby pledges, mortgages, assigns, transfers, delivers, deposits, sets over and
confirms as a first priority pledge to the Buyer and its successors and assigns,
with any right to vote that such Class B Stock possesses as hereinafter
provided, all of the Class B Stock owned by such Class B Shareholder, which, in
the aggregate for all Class B Shareholders, consists of 255,018 shares of Class
B Stock, all as collateral security for performance by such Class B Shareholder
of such Class B Shareholder's obligations hereunder and such Class B
Shareholder's obligations under the Stock Agreement, including, without
limitation, its Class B Shareholder's Obligation, or in the event such Class B
Shareholder should become a Defaulting Stock Seller, its Defaulting Stock Seller
Obligation. Certificates representing the Class B Stock and the Endorsements
with respect thereto are herewith delivered to the Escrow Agent as the agent of
Buyer for the purpose of perfecting this pledge and such Class B Stock shall be
held in escrow upon the terms and conditions set forth herein.
5.2 PERFECTION OF PLEDGE. Escrow Agent acknowledges and
agrees that it is holding the Class B Stock and Endorsements for Buyer and
acting as agent for Buyer for the purpose of perfecting the security interest of
Buyer in the Class B Stock and Endorsements. The Class B Shareholders
acknowledge and agree that possession of the Class B Stock and Endorsements by
Escrow Agent shall perfect Buyer's security interest and pledge in the Class B
Stock, without any further act or deed.
5.3 OWNERSHIP OF CLASS B STOCK. Each Class B
Shareholder (other than the Trustee) represents and warrants that: (A) such
Class B Shareholder is the sole record and beneficial owner of good and
marketable title to all of the Class B Stock set forth opposite such Class B
Shareholder's name in the Disclosure Letter under the heading "Class B Stock
Owned"; (B) All Class B Stock held by such Class B Shareholder is duly
authorized, validly issued, fully paid for and is nonassessable; (C) such Class
B Shareholder owns such Class B Stock free and clear of all liabilities
(absolute or contingent) and Liens; (D) upon deposit of the Class B Stock owned
by each Class B Shareholder with the Escrow Agent, the Escrow Agent shall hold
100% of the issued and outstanding Class B Stock of the Company; and (E) at the
Stock Closing, Buyer will acquire good and marketable title to all of such Class
B Stock free and clear of all liabilities (absolute or contingent) and Liens.
5.4 CLASS B SHAREHOLDERS' RIGHTS. Unless and until an
Event of Default shall have occurred and be continuing, each Class B Shareholder
(or the proxy for such Class B Shareholder, but in no event the Trustee) shall
have the right to vote and give consents with respect to the Class B Stock owned
by such Class B Shareholder. Upon the occurrence of an Event of Default, each
Class B Shareholder (or the proxy for such Class B Shareholder, but in no event
the Trustee) will continue to retain such Class B Shareholder's
10
11
right to vote and give consents with respect to the Class B Stock owned by such
Class B Shareholder until Buyer has obtained FCC consent as contemplated by
SECTION 5.8.8.
5.5 COVENANTS OF CLASS B SHAREHOLDERS (OTHER THAN THE
TRUSTEE). Each Class B Shareholder (other than the Trustee) covenants and
agrees that until satisfaction in full of such Class B Shareholder's Obligation:
5.5.1 Other than transferring such Class B Stock to the
Trustee, as contemplated herein, such Class B Shareholder will
not sell, assign, transfer, mortgage, pledge or otherwise
encumber any of such Class B Shareholder's rights in or to the
Class B Stock owned by such Class B Shareholder or any
dividends or other distributions or payments with respect
thereto or xxxxx x Xxxx in any of the Class B Stock owned by
such Class B Shareholder or any unpaid dividends or other
distributions or payments with respect thereto.
5.5.2 Such Class B Shareholder will obtain, execute,
acknowledge and deliver all such instruments and take all such
action necessary (or as the Buyer from time to time may
request) in order to ensure the Buyer shall have and retain the
benefits of the first priority Lien in the Class B Stock owned
by such Class B Shareholder intended to be created by this
Agreement.
5.6 COVENANTS OF THE TRUSTEE. The Trustee covenants and
agrees that after the Class B Stock has been transferred to the Trustee, as
contemplated herein, until satisfaction in full of the Class B Shareholder's
Obligation, the Trustee will not sell, assign, transfer, mortgage, pledge or
otherwise encumber any of the Trustee's rights (other than the grant to Xxxxx of
a proxy to vote the Class B Stock) in or to the Class B Stock owned by the
Trustee.
5.7 EVENTS OF DEFAULT. The occurrence of any the following
shall constitute an "Event of Default" under this Agreement:
5.7.1 An occurrence of a material default by any Class B
Shareholder under the Stock Agreement.
5.7.2 Failure by any Class B Shareholder to observe and perform
any covenant, condition, or agreement on such Class B
Shareholder's part to be observed or performed under this
Agreement.
5.7.3 Failure of any representation or warranty of any Class B
Shareholder contained in this Agreement to be true when given.
5.7.4 Failure for any reason of the Escrow Agent to deliver all
Class B Stock and Endorsements to the Buyer upon Buyer's
delivery of the Stock Purchase Price pursuant to SECTION 3.1
hereof.
11
12
5.7.5 The assertion by any person, other than the Class B
Shareholder in whose name such Class B Stock is registered, of
any claim to an interest in any Class B Stock.
5.7.6 The existence of a proceeding with respect to any Class B
Shareholder as debtor, under any chapter of the U.S. Bankruptcy
Code.
5.7.7 The occurrence of any event as a result of which the
delivery of the Class B Stock and Endorsements by the Escrow
Agent to the Buyer will not vest in the Buyer good and
marketable title to all of the Class B Stock, free and clear of
all liabilities (absolute or contingent) and Liens.
5.8 REMEDIES.
5.8.1 Upon the later of (i) the occurrence of an Event of
Default and (ii) compliance with the requirements of Section
5.8.8 hereof, then or at any time after such time, and in
addition to the rights and remedies of Buyer pursuant to the
terms and provisions of the Stock Agreement or any ancillary
document referred to therein, the Buyer (personally or through
an agent) is hereby authorized and empowered at its election,
to transfer and register in its name or in the name of its
nominee the whole or any part of any Class B Stock owned by a
Defaulting Stock Seller and to exercise the voting rights with
respect the Class B Stock owned by a Defaulting Stock Seller,
to sell, in one or more sales after seven (7) days' notice
(which notice the Class B Shareholders agree is commercially
reasonable) but without any previous notice or advertisement,
the whole or any part of the Class B Stock owned by a
Defaulting Stock Seller and to otherwise act with respect to
the Class B Stock owned by a Defaulting Stock Seller as though
the Buyer was the outright owner thereof, the Defaulting Stock
Seller hereby irrevocably constituting and appointing the Buyer
as the proxy and attorney-in-fact of the Defaulting Stock
Seller, with full power of substitution to do so; provided,
however, the Buyer shall not have any duty to exercise any such
right or to preserve the same and shall not be liable for any
failure to do so or for any delay in doing so. Any sale may be
either for cash or upon credit or for future delivery at such
price as the Buyer may deem fair, and the Buyer may be the
purchaser of the whole or any part of the Class B Stock owned
by a Defaulting Stock Seller so sold and hold the same
thereafter in its own right free from any claim of the
Defaulting Stock Seller or any right of redemption. Each sale
shall be made to the highest bidder, but the Buyer reserves the
right to reject any and all bids at such sale which, in its
sole discretion, it shall deem inadequate. Demands of
performance, except as otherwise herein specifically provided
for, notices of sale, advertisements and the presence of
property at sale are hereby waived and any sale
12
13
hereunder may be conducted by an auctioneer or any officer or
agent of the Buyer.
5.8.2 Upon the occurrence of an Event of Default then or at any
time after such time, and in addition to the rights and
remedies of Buyer pursuant to the terms and provisions of the
Stock Agreement or any ancillary document referred to therein,
the Buyer (personally or through an agent) is hereby authorized
and empowered at its election to collect and receive all cash
dividends and other distributions made on the Class B Stock
owned by a Defaulting Stock Seller.
5.8.3 If, at the original time or times appointed for the sale
of the whole or any part of the Class B Stock owned by a
Defaulting Stock Seller, the highest bid, if there be but one
sale, shall be inadequate to discharge in full such Defaulting
Stock Seller's Obligation, or if the Class B Stock owned by a
Defaulting Stock Seller be offered for sale in lots, if at any
of such sales, the highest bid for the lot offered for sale
would indicate to the Buyer, in its discretion, the
unlikelihood of the proceeds of the sales of all of the Class B
Stock owned by a Defaulting Stock Seller being sufficient to
discharge such Defaulting Stock Seller's Defaulting Stock
Seller's Obligation, the Buyer may, on one or more occasions,
postpone any of said sales by public announcement at the time
of sale or the time of previous postponement of sale, and no
other notice of such postponement or postponements of sale need
be given, any other notice being hereby waived; provided,
however, that any sale or sales made after such postponement
shall be after 7 days' notice to each Defaulting Stock Seller.
5.8.4 In the event of any sale(s) hereunder the Buyer shall,
after deducting all costs or expenses of every kind (including
attorney's fees and expenses) for care, safekeeping,
collection, sale, delivery or otherwise, apply the residue of
the proceeds of the sale(s) to the payment or reduction, either
in whole or in part, of the Defaulting Stock Seller's
Obligation, disposing of any surplus as required by law.
5.8.5 If, at any time when the Buyer shall determine to
exercise its right to sell the whole or any part of the Class B
Stock owned by a Defaulting Stock Seller hereunder, such Class
B Stock or the part thereof to be sold shall not be effectively
registered, for any reason whatsoever, under the Securities
Act, the Buyer may, in its discretion (subject only to
applicable requirements of law), sell such Class B Stock owned
by a Defaulting Stock Seller or part thereof by private sale in
such manner and under such circumstances as the Buyer may deem
necessary or advisable, but subject to the other requirements
of this SECTION 5.8, and shall not be required to effect such
registration or to cause the same to be effected. Without
limiting the
13
14
generality of the foregoing, in any such event the Buyer in its
discretion (a) may proceed to make such private sale
notwithstanding that a registration statement for the purpose
of registering such Class B Stock or part thereof could be or
shall have been filed under the Securities Act, (b) may
approach and negotiate with a single possible purchaser to
effect such sale, and (c) may restrict such sale to a purchaser
who will represent and agree that such purchaser is purchasing
for its own account, for investment and not with a view to the
distribution or sale of such Class B Stock or part thereof. In
addition to a private sale as provided above in this SECTION
5.8, if any of the Class B Stock shall not be freely
distributable to the public without registration under the
Securities Act at the time of any proposed sale pursuant to
this SECTION 5.8, then the Buyer shall not be required to
effect such registration or cause the same to be effected but,
in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at
auction) be conducted subject to restrictions (i) as to the
financial sophistication and ability of any person permitted to
bid or purchase at sale, (ii) as to the content of legends to
be placed upon any certificates representing the Class B Stock
sold in such sale, including restrictions on future transfer
thereof, (iii) as to the representations required to be made by
each person bidding or purchasing at such sale relating to that
person's access to financial information about the Defaulting
Stock Seller and such person's intentions as to the holding of
the Class B Stock so sold for investment, for its own account,
and not with a view to the distribution thereof, and (iv) as to
such other matters as the Buyer may, in its discretion, deem
necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in
compliance with laws affecting the enforcement of creditors'
rights and the Securities Act and all applicable state or other
jurisdictions' securities laws.
5.8.6 Each Class B Shareholder acknowledges that: (a) any sale
under the circumstances described in this SECTION 5.8 shall be
deemed to have been held in a manner which is commercially
reasonable, and (b) notwithstanding the legal availability of a
private sale or a sale subject to restrictions of the character
described above, the Buyer may, in its discretion, elect to
register under the Securities Act (or any applicable state
securities laws) in accordance with its rights under this
SECTION 5.8. In the event of any such sale under the
circumstances described in this SECTION 5.8, the Buyer shall
incur no responsibility or liability for selling all or any
part of the Class B Stock at a price which the Buyer may deem
reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might be realized
if the sales were deferred until after registration as
aforesaid.
14
15
5.8.7 Each Class B Shareholder agrees that it will not at any
time plead, claim or take the benefit of any appraisal,
valuation, stay, extension, moratorium or redemption law now or
hereafter in force in order to prevent or delay the enforcement
of this Agreement, or the absolute sale of the whole or any
part of the Class B Stock owned by a Defaulting Stock Seller or
the possession thereof by any purchaser at any sale hereunder,
and each Class B Shareholder waives the benefit of all such
laws to the extent it lawfully may do so. Each Class B
Shareholder agrees that it will not interfere with any right,
power and remedy of the Buyer provided for in this Agreement or
now or hereafter existing at law or in equity or by statute or
otherwise, or the exercise or beginning of the exercise by the
Buyer of any one or more of such rights, powers or remedies. No
failure or delay on the part of the Buyer to exercise any such
right, power or remedy and no notice or demand which may be
given to or made upon a Defaulting Stock Seller by the Buyer
with respect to any such remedies shall operate as a waiver
hereof, or limit or impair the Buyer's right to take any action
or to exercise any power or remedy hereunder, without notice or
demand, or prejudice its rights as against the Defaulting Stock
Seller in any respect.
5.8.8 Notwithstanding any other provision of this Agreement,
any exercise of a remedy or other action taken or proposed to
be taken by any party hereunder which would affect the
operations, voting or other control of or constitute an
attributable interest or cross-interest in the Company, shall
be pursuant to Section 310 of the Communications Act, as
amended from time to time, to Section 73.3555 of the FCC's
Rules, as may be amended from time to time, to any applicable
state laws and to the applicable policies, rules and
regulations thereunder, and if and to the extent required
thereby, subject to the prior approval of the FCC.
5.9 MEASUREMENT OF DAMAGES. The Class B Shareholders
acknowledge that since the obligations secured hereby are the Class B
Shareholders' obligations to transfer ownership of the Class B Stock to Buyer,
therefore if any Class B Stock is not transferred to Buyer the measure of
Buyer's damages is the full value of the Class B Stock not transferred to Buyer
less the Stock Purchase Price for such Class B Stock, plus any other damages
incurred by Buyer resulting from such breach. The Class B Shareholders
acknowledge that if any Class B Stock owned by a Defaulting Stock Seller is
liquidated in enforcement of Buyer's security interest in such Class B Stock,
Buyer's Damages shall be at least equal to the entire proceeds received from the
sale of such Class B Stock upon foreclosure, plus the costs and expenses of
Buyer in enforcing such security interest, less the Stock Purchase Price
attributable to such Class B Stock, and that if the proceeds upon foreclosure
are less than the fair market value of such Class B Stock sold in foreclosure,
Buyer's damages may exceed the aforesaid amount.
15
16
5.10 EXTENT OF OBLIGATION. The Class B Shareholders
hereby agree that from time to time, without notice or demand and without
affecting or impairing in any way the rights of Buyer with respect to the Class
B Stock or the obligations of Class B Shareholders hereunder, Buyer may: (a)
exchange, enforce, waive, release, apply and direct the order or manner of sale
of any and all collateral for the any Class B Shareholder's Obligation, as
Buyer, in its sole discretion, may determine, and/or (b) release or substitute
any one or more endorsers or guarantors. The Class B Shareholders waive any
right to require Buyer to: (a) proceed against any endorsers or guarantors, (b)
proceed against or exhaust any security held for the Obligation, or (c) pursue
any other remedy in Buyer's power whatsoever. The Class B Shareholders hereby
waive notice of acceptance of this Agreement, and also presentment, demand,
protest and notice of dishonor of any Obligation, and promptness in commencing
suit against any party thereto or liable thereon, and in giving notice to or of
making any claim or demand hereunder upon the Class B Shareholders. No act or
omission of any kind on Buyer's part in the premises shall in any event affect
or impair this Agreement.
5.11 INDEMNIFICATION BY DEFAULTING STOCK SELLER. Each
Defaulting Stock Seller agrees to indemnify and hold the Buyer harmless from and
against any taxes, liabilities, claims and damages, including reasonable
attorney's fees and disbursements, and other expenses incurred or arising by
reason of the taking or the failure to take action by the Buyer, in good faith,
under this Agreement and in respect of any transactions effected in connection
with this Agreement, including, without limitation, any taxes payable in
connection with the delivery or registration of any of the Class B Stock owned
by a Defaulting Stock Seller as provided herein. The obligations of a Defaulting
Stock Seller under this Section shall survive the termination of this Agreement.
SECTION 6
PERFORMANCE OF THE ESCROW AGENT
6.1 LIMITATION OF LIABILITY. The duties and obligations
of the Escrow Agent are only those expressly set forth in this Agreement. Escrow
Agent shall not be liable to anyone for any damages, losses, or expenses which
they may incur as a result of any act or omission of Escrow Agent, unless such
damages, losses, or expenses are caused by Escrow Agent's willful misconduct or
gross negligence. Accordingly, Escrow Agent shall not incur any such liability
with respect to (a) any action taken or omitted in good faith upon the advice of
counsel or counsel for any other party hereto, given with respect to any
question relating to the duties and responsibilities of Escrow Agent under this
Agreement or (b) any action taken or omitted in reliance upon any instrument,
including execution, or the identity or authority of any person executing such
instrument, its validity and effectiveness, but also as to the truth and
accuracy of any information contained therein which Escrow Agent shall, in good
faith, believe to be genuine, to have been signed by a proper person or persons
and to conform to the provisions of this Agreement. Escrow Agent shall not be
bound in any way by any contract or agreement between other parties
16
17
hereto, whether or not it has knowledge of any such contract or agreement or of
its terms or conditions.
6.2 INDEMNITY OF THE ESCROW AGENT.
6.2.1 INDEMNIFICATION. The Escrow Agent Indemnifying Parties
jointly and severally, hereby agree to indemnify and hold
harmless Escrow Agent against any and all costs, losses,
claims, damages, liabilities and expenses, including reasonable
costs of investigation, court costs, and attorney's fees and
disbursements, which may be imposed upon Escrow Agent in
connection with its acceptance of appointment as Escrow Agent
hereunder, including any litigation arising from this Agreement
involving the subject matter hereof, and all such costs,
expenses and disbursements shall be for the account of and
shall be borne and paid as provided in SECTION 2.2 as a
condition to termination of the Agreement, except that there
shall be no indemnification for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting
from the willful misconduct or gross negligence of the Escrow
Agent.
6.2.2 SECURITY. As security for the indemnification obligations
of the Escrow Agent by the Indemnifying Parties, the Escrow
Agent is hereby granted a lien upon all assets held by Escrow
Agent hereunder, which lien shall be prior to all other liens
upon or claims against such assets.
6.2.3 SHARING OF COSTS. Any amounts that become payable to the
Escrow Agent in accordance with SECTION 6 shall be borne and
paid one-half by Buyer and one-half by the Class B Shareholders
except (i) if such amounts become payable to the Escrow Agent
due to the action or failure to act of Buyer, all such amounts
shall be borne and paid entirely by Buyer, or (ii) if such
amounts become payable to the Escrow Agent due to the action or
failure to act of the Class B Shareholders or the Sellers
Representative, all such amounts shall be borne and paid
entirely by the Class B Shareholders. The indemnification
obligations to the Escrow Agent shall be paid directly by the
party responsible pursuant to this SECTION 6.2.3.
6.3 DISPUTES.
6.3.1 DISAGREEMENTS. In the event of any disagreement among any
of the parties to this Agreement, or among them or any other
person resulting in adverse claims and demands being made in
connection with or from any property involved herein or
affected hereby, Escrow Agent shall be entitled to refuse to
comply with any such claims or demands as long as such
disagreement may continue, and in so refusing, shall make no
delivery or other disposition of any property then held by it
under this Agreement, and
17
18
in so doing the Escrow Agent shall be entitled to continue to
refrain from acting until (i) the right of adverse claimants
shall have been finally settled by binding arbitration or
finally adjudicated in a court assuming and having jurisdiction
of the property involved herein or affected or (2) all
differences shall have been adjusted by agreement and Escrow
Agent shall have been notified in writing of such agreement
signed by the parties hereto.
6.3.2 INTERPLEADER. In the event of such disagreement, Escrow
Agent may, but need not, tender into the registry or custody of
any court of competent jurisdiction all money or property in
its hands under the terms of this Agreement, together with such
legal proceedings as it deems appropriate and thereupon to be
discharged from all further duties under this Agreement. The
filing of any such legal proceeding shall not deprive Escrow
Agent of its compensation earned prior to such filing.
6.3.3 SECURITY TO BE PROVIDED. Escrow Agent shall have no
obligation to take any legal action in connection with this
Agreement or towards its enforcement, or to appear in,
prosecute or defend any action or legal proceeding which would
or might involve it in any cost, expense, loss or liability
unless security and indemnity, as provided in SECTION 6.2 of
this Agreement, shall be furnished.
SECTION 7
VACANCIES
7.1 RESIGNATION OF THE ESCROW AGENT. The Escrow Agent
may at any time resign by giving at least thirty (30) days' prior written notice
of such resignation to the Buyer and the Sellers Representative. In such event,
Buyer with the approval of the Sellers Representative, which approval shall not
be unreasonably withheld, will promptly select another bank in Cincinnati, Ohio,
insured by the Federal Deposit Insurance Corporation, and with assets of not
less than $50,000,000 which will be appointed as successor escrow agent and
Buyer and the Class B Shareholders shall enter into an agreement with such other
bank, in substantially the form of this Agreement. From and after the effective
date of such resignation or appointment, the Escrow Agent shall not be obligated
to perform any of the duties of the escrow agent hereunder and will not be
liable for any nonperformance thereof nor for any act or failure to act
whatsoever on the part of any successor escrow agent. If a substitute for the
Escrow Agent hereunder shall not have been selected, as aforesaid, the Escrow
Agent shall be entitled to petition any court for the appointment of a
substitute for it hereunder, or in the alternative, it may transfer and deliver
the Escrow Fund to or upon the order of any court; provided, however, until such
time as a substitute has been appointed as herein provided or a court has
otherwise ordered, the Escrow Agent shall continue to serve hereunder.
18
19
7.2 SUCCESSOR TO THE ESCROW AGENT. Any corporation
resulting from any merger or consolidation to which the Escrow Agent shall be a
party, or any corporation in any manner succeeding to all or substantially all
of the business of the Escrow Agent, provided such corporation shall be a
banking corporation organized under the laws of the United States of America
with trust powers, shall be the successor agent hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
7.3 REMOVAL OF THE ESCROW AGENT. In the event Buyer and
the Sellers Representative consent to the removal of the Escrow Agent and the
appointment of a successor escrow agent, the Escrow Agent shall transfer and
deliver the Escrow Fund to such successor escrow agent whereupon the Escrow
Agent shall be discharged from all further duties hereunder.
SECTION 8
TERMINATION
This Agreement shall terminate when all Class B Stock and the Stock
Purchase Price are distributed as provided in SECTION 4.
SECTION 9
GENERAL PROVISIONS
9.1 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
Sellers Representative, which modification or amendment shall be binding upon
all of the parties hereto.
9.2 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.
9.3 ASSIGNMENT AND BINDING EFFECT. This Agreement and
the rights and obligations of any party hereunder may not be assigned by any
Class B Shareholder without the prior written consent of Buyer. Buyer shall have
the right to assign and/or delegate all or any portion of its rights and
obligations under this Agreement provided that no such assignment and/or
delegation shall relieve Buyer of its obligations hereunder in the event that
its assignee fails to perform the obligations delegated. All covenants,
agreements, statements, representations, warranties and indemnities in this
Agreement by and on behalf
19
20
of any of the parties hereto shall bind and inure to the benefit of their
respective successors and permitted assigns of the parties hereto.
9.4 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.
9.5 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:
9.5.1 If to Buyer: Jacor Communications, Inc.
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
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
9.5.2 If to the Class B Shareholders, to Sellers Representative as
follows:
Xxxx X. Xxxxx
0000 Xxx Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
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 00000-0000
Attention: J. Xxxxxxx X'Xxxxxx, Esq.
Fax: (000) 000-0000
20
21
and with a copy (which shall not constitute notice)
to:
Xxxxx X. De Francesco
00000 Xxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
9.5.3 If to Escrow Agent, as follows:
The Fifth Third Bank
Corporate Trust Department
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Vice President
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.
9.6 SELLERS REPRESENTATIVE. The Class B Shareholders
hereby appoint Xxxxx as their agent and representative (the "Sellers
Representative") for the purposes of representing, acting for and binding the
Class B Shareholders for all purposes of this Agreement, including, without
limitation: (i) amending, restating, supplementing, terminating or otherwise
modifying this Agreement or making any waivers on behalf of the Class B
Shareholders pursuant hereto; and (ii) settling of any controversies or
disagreements between Buyer and/or Class B Shareholders hereunder; and (iii)
receiving or giving any notices to or from Class B Shareholders hereunder; and
(iv) communicating on behalf of Class B Shareholders with the Buyer and/or
Escrow Agent as to any matters relating to this Agreement. Buyer and Escrow
Agent shall be entitled to presumptively rely without further inquiry upon all
acts of, and communications from, Sellers Representative as being the authorized
actions and communications of the Sellers Representative as approved by the
Class B Shareholders.
9.7 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.
9.8 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
21
22
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
9.9 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).
9.10 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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
22
23
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. NOBLE BROADCAST GROUP, INC.
By:____________________________ By:___________________________
Its:___________________________ Its:__________________________
______________________________ ______________________________
XXXX X. XXXXX XXXXXXX X. XXXXX, TRUSTEE
______________________________ THE FIFTH THIRD BANK
XXXXX X. DE FRANCESCO
______________________________ By:___________________________
XXXXXXX X. XXXXXX Its:__________________________
______________________________
XXXXXX X. XXXXXXX
________________________________________
XXXX X. XXXXX, AS SELLERS REPRESENTATIVE
[Signature Page to Stock Escrow and Security Agreement]
23
24
EXHIBIT 1.1.40
TRUST AGREEMENT
24
25
EXHIBIT A
FEE SCHEDULE FOR
STOCK ESCROW AND SECURITY AGREEMENT
FEBRUARY 6, 1996
JACOR COMMUNICATIONS, INC.
RE: NOBLE BROADCAST GROUP, INC.
ACCEPTANCE FEE & 1ST YEAR FEE $7,500.00
INCLUDES ANTICIPATED LEGAL FEES FOR INITIAL REVIEW.
ANNUAL ADMINISTRATION FEE (AFTER 1ST YEAR): $5,000.00
All out-of-pocket expenses deemed necessary and incurred in the acceptance or
the administration of this account by Fifth Third Bank, including but not
limited to attorney's and agent's fees, extraordinary time and expenses of Fifth
Third Bank, postage, supplies, long distance telephone charges, wire transfer
fees, travel, redemption expenses, and courier expenses, are to be reimbursed in
addition to payment for services rendered. Fifth Third Bank also charges a cash
management fee on its' taxable Fountain Square Funds in the amount of $.30 per
$1,000 held per month. Fees for activities not specifically contemplated herein
shall be additional. The acceptance of this account and fees are subject to
Fifth Third Bank's review and approval of documents governing this issue.
25
