SECOND AMENDMENT TO
STOCK PURCHASE AND STOCK AND WARRANT REDEMPTION AGREEMENT
This Second Amendment (this "Amendment") to that certain Stock Purchase and
Stock and Warrant Redemption Agreement dated as of February 20, 1996 by and
among Jacor Communications, Inc., a Delaware corporation ("Buyer"), Prudential
Venture Partners II, L.P., a limited partnership, Northeast Ventures, II, a
limited partnership, Xxxx X. Xxxxx ("Xxxxx"), Xxxxx X. De Francesco ("De
Francesco"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxxx X. Xxxxxx ("Arbenz," and
together with Xxxxx, De Francesco and Xxxxxxx, the "Class B Shareholders"),
CIHC, Incorporated, a Delaware Corp. ("CIHC"), Bankers Life Holding Corporation,
a Delaware Corp. ("BLH") and Noble Broadcast Group, Inc., a Delaware corporation
(the "Company"), and amended by the First Amendment to Stock Purchase and Stock
and Warrant Redemption Agreement dated as of June 8, 1996 (collectively, the
"Stock Purchase Agreement") is entered into as of December 20, 1996 by and among
Buyer, the Company and the Class B Shareholders. Unless specifically designated
otherwise, the capitalized terms used herein shall have the same meanings
ascribed to them in the Stock Purchase Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree to
amend the Stock Purchase Agreement as set forth below:
1. SEVERANCE BENEFITS. Notwithstanding any provision to the contrary in
the Stock Purchase Agreement, including without limitation Section 8.11, the
Class B Shareholders will not be liable in any way for the cost of any severance
payments made by the Company, a Subsidiary or Buyer to the persons listed on
Exhibit "A" attached hereto.
2. SURVIVAL OF REPRESENTATIONS, ETC.
Section 8.13 of the Stock Purchase Agreement is hereby deleted in its
entirety and replaced with the following:
"8.13 SURVIVAL OF REPRESENTATIONS, ETC. It is the
express intention and agreement of the parties to this
Amendment that: (A) all covenants and agreements (together
("Agreements") and all representations and warranties
(together "Warranties") made by Buyer, Sellers and the
Company in this Amendment or in any Ancillary Document shall
survive (regardless of any knowledge, investigation, audit
or inspection at any time made by or on behalf of Buyer, any
Seller or the Company) as follows:
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8.13.1 The Agreements shall survive the
Redemption Closing and Stock Closing without
limitation.
8.13.2 The Warranties contained in Article III
and Article V (the "Perpetual Warranties") shall
survive the Redemption Closing and Stock Closing
without limitation.
8.13.3 As they relate specifically to the
operations of the TBA Stations, all Warranties
other than the Perpetual Warranties shall only
survive for a period of twelve (12) months from
the Redemption Closing Date.
8.13.4 Intentionally omitted.
8.13.5 Other than as limited by Section 8.13.3,
all Warranties other than the Perpetual Warranties
shall survive for a period of twelve (12) months
from the Redemption Closing Date.
8.13.6 The right of either party to recover
Damages (as defined in the Indemnification and
Escrow Agreement) as to any specific matter for
which indemnification is sought shall not be
affected by the expiration of any Warranties as
set forth herein, provided that a Claim Notice (as
defined in the Indemnification and Escrow
Agreement) with respect to such matter has been
given by the indemnified party to the indemnifying
party prior to such expiration and prior to the
expiration of the indemnifying parties'
obligations under the Indemnification and Escrow
Agreement and subject to the terms of the
Indemnification and Escrow Agreement.
8.13.7 Notwithstanding any provision hereof to
the contrary, there shall be no contractual time
limit in which Buyer, the Company or Sellers may
bring any action for actual fraud (a "Fraud
Action"), regardless of whether such actual fraud
also included a breach of any Agreement or
Warranty; provided,
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however, that any Fraud Action must be brought
within the period of the applicable statute of
limitations plus any extensions or waivers granted
or imposed with respect thereto.
8.13.8 Subject to and effective upon the
Redemption Closing, each Seller hereby releases
the Company and the Subsidiaries, and each of
their respective directors, officers, employees,
agents and representatives, from and against any
and all claims that they may have against such
entities or persons resulting from any fact,
circumstance or condition which gives rise to a
claim for indemnification by Buyer pursuant to
this Agreement, the Indemnification and Escrow
Agreement or any Ancillary Document."
3. CONFIRMATION OF STOCK PURCHASE AGREEMENT; CONFLICT OF TERMS; FURTHER
ASSURANCES. Except as modified by this Amendment, the terms and provisions of
the Stock Purchase Agreement are hereby reaffirmed. If and to the extent that
any term or provision of this Amendment conflicts with any term or provision of
the Stock Purchase Agreement, then any such term or provision of the Stock
Purchase Agreement will be deemed to have been supplemented and amended by the
terms and provisions of this Amendment. Such supplementation and amendment will
be automatic and without the need for further action or documentation by any of
the parties. Each party to this Amendment agrees that, if at any time and from
time to time after the date of this Amendment, any party hereto reasonably
determines that any further conveyance, assignment or other document or any
further action is necessary or desirable to carry out the purposes of and to
make effective the transactions contemplated in this Amendment, the parties
agree to execute and deliver all such instruments and to take all such actions
as may be reasonably necessary or advisable for such purpose.
4. RESERVATION OF RIGHTS. The parties to this Amendment acknowledge and
agree that except as expressly set forth in this Amendment, that each of the
parties hereby reserves all such party's rights under and in connection with the
Stock Purchase Agreement, and that nothing in this Amendment shall constitute a
waiver of any of such party's rights under and in connection with the Stock
Purchase Agreement.
5. COUNTERPARTS. This Amendment may be executed in as many counterparts
as may be required, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but a
single agreement.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
"BUYER" "THE CLASS B SHAREHOLDERS"
JACOR COMMUNICATIONS, INC,
a Delaware corporation
By:/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxx
------------------------------ ------------------------------
Xxxxxx X. Xxxxxxxx XXXX X. XXXXX
President & Chief Operating Officer
"THE COMPANY"
/s/ Xxxxx X. De Francesco
------------------------------
NOBLE BROADCAST GROUP, INC., XXXXX X. DE FRANCESCO
a Delaware corporation
By:/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------
Xxxxxx X. Xxxxxxxx XXXXXX X. XXXXXXX
Executive Vice President
/s/ Xxxxxxx X. Xxxxxx
------------------------------
XXXXXXX X. XXXXXX
[COUNTERPART SIGNATURE PAGE TO FIRST AMENDMENT TO STOCK
PURCHASE AND STOCK AND WARRANT REDEMPTION AGREEMENT]
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EXHIBIT "A"
Excluded Employee Severance Payments
------------------------------------
Xxxxxx R Falls
Xxxxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxxx
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