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TRUST AGREEMENT
BY AND BETWEEN
XXXX X. XXXXX, XXXXXXXXX X. XXXXX, XXXXX X. XXXXXXXXXXX,
XXXXX XXXXXXXXXXX, XXXXXX X. XXXXXXX, XXXXX XXXXXXX,
XXXXXXX X. XXXXXX AND XXXXX XXXXXX,
AS TRUSTORS,
AND
XXXXXXX X. XXXXX,
AS TRUSTEE,
DATED AS OF
FEBRUARY 20, 1996
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TRUST AGREEMENT
THIS TRUST AGREEMENT, made as of February 20, 1996, by and
between the Trustors, XXXX X. XXXXX ("XXXXX"), XXXXXXXXX X. XXXXX ("XXX.
XXXXX"), XXXXX X. XXXXXXXXXXX ("XXXXXXXXXXX"), XXXXX XXXXXXXXXXX [XXX.
XXXXXXXXXXX], XXXXXX X. XXXXXXX ("XXXXXXX"), XXXXX XXXXXXX [XXX. XXXXXXX],
XXXXXXX X. XXXXXX ("ARBENZ") and XXXXX XXXXXX [XXX. XXXXXX] (except as provided
in Article 2, each of the foregoing individuals are sometimes referred to herein
individually as a "Trustor", and collectively referred to as the "Trustors,"
unless the context otherwise requires) and the Trustee, XXXXXXX X. XXXXX, under
the following circumstances:
A. Certain of the Trustors are parties to a Stock Purchase and
Warrant Redemption Agreement (the "Stock Agreement") of even date herewith by
and among: (1) Jacor Communications, Inc., an Ohio corporation ("Buyer"); (2)
Prudential Venture Partners II, L.P., a limited partnership ("Prudential"); (3)
Northeast Ventures, II, a limited partnership ("Northeast"); (4) XXXXX; (5)
XXXXXXXXXXX; (6) XXXXXXX; (7) ARBENZ; (8) CIHC, Incorporated, a Delaware
corporation ("CIHC"); (9) Bankers Life Holding Corporation, a Delaware
corporation ("BLH"); and (10) Noble Broadcasting Group, Inc., a Delaware
corporation ("Company").
B. Certain of the Trustors and the Trustee also intend to enter
into a Stock Escrow and Security Agreement (the "Escrow Agreement") to be dated
as of February __, 1996, among (1) Buyer; (2) Prudential; (3) Northeast; (4)
XXXXX; (5) XXXXXXXXXXX; (6) XXXXXXX; (7) ARBENZ; (8) Company, the Trustee and
(9) The Fifth Third Bank, an Ohio banking corporation (the "Escrow Agent").
X. XXXXX, XXXXXXXXXXX, XXXXXXX AND ARBENZ (each referred to
herein individually as a "Class B Shareholder", and collectively as the "Class B
Shareholders") are the record and beneficial owners of 100% of the issued and
outstanding shares of the Class B common stock of the Company (the "Class B
Stock"), and Buyer desires to acquire all of the Class B Stock, and the Class B
Shareholders desire that Buyer acquire all of the Class B Stock, upon and
subject to the terms and conditions of the Stock Agreement.
D. As a condition to purchasing the Class B Stock, Buyer has
required that the Class B Shareholders place their Class B Stock in the escrow
created pursuant to the Escrow Agreement.
E. To further ensure that the Class B Stock is transferred at
the Stock Closing (as defined in the Stock Agreement) the Trustors have agreed
to transfer any
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interest they may have in the Class B Stock to the Trustee pursuant to this
Trust Agreement.
ARTICLE 1
CREATION OF TRUST; DESIGNATION OF TRUSTEE
As of the above date, Trustor has designated XXXXXXX X. XXXXX
as Trustee of all property which the Trustee may receive, to hold the same (the
"Trust Estate") in trust, on the terms and conditions of this Trust Agreement.
The Trust Estate shall initially consist of Ten Dollars ($10.00). Upon
receipt of FCC Approval of the transfer of the Class B Stock to the Trustee (as
defined in the Escrow Agreement) all of the Trustors' Class B Stock shall be
registered in the name of the Trustee by the Escrow Agent and shall become part
of the Trust Estate subject to irrevocable proxies for all voting purposes in
favor of LYNCH, DEFRANCESCO, XXXXXXX AND ARBENZ in the form of the Irrevocable
Proxy Agreement attached as Exhibit "A" (the "Proxy"). The Trustee shall hold,
administer, and distribute the Trust Estate in compliance with all of the terms
and conditions of this Trust Agreement, the Stock Agreement and the Escrow
Agreement.
ARTICLE 2
DIVISION OF TRUST ESTATE
2.1 Any property held as part of the Trust Estate which was
contributed by XXXXX or XXX. XXXXX shall be held by the Trustee as a separate
trust for the benefit of XXXXX and XXX. XXXXX pursuant to the provisions of
Article 3 below. For purposes of that separate trust, XXXXX and XXX. XXXXX shall
be referred to collectively as the "Trustor," and all distributions of income,
capital gains and eventually , of principal to the Trustor shall be made in
equal shares to XXXXX and XXX. XXXXX.
2.2 Any property held as part of the Trust Estate which was
contributed by XXXXXXXXXXX and XXX. XXXXXXXXXXX shall be held by the Trustee as
a separate trust for the benefit of XXXXXXXXXXX and XXX. XXXXXXXXXXX pursuant to
the provisions of Article 3 below. For purposes of that separate trust,
XXXXXXXXXXX and XXX. XXXXXXXXXXX shall be referred to collectively as the
"Trustor," and all distributions of income, capital gains and eventually, of
principal to the Trustor shall be made in equal shares to XXXXXXXXXXX and XXX.
XXXXXXXXXXX.
2.3 Any property held as part of the Trust Estate which was
contributed by XXXXXXX and XXX. XXXXXXX shall be held by the Trustee as a
separate trust for the benefit of XXXXXXX and XXX. XXXXXXX pursuant to the
provisions of Article 3 below. For purposes of that separate trust, XXXXXXX and
XXX. XXXXXXX shall be referred to collectively as the "Trustor," and all
distributions of income, capital gains and eventually, of principal to the
Trustor shall be made in equal shares to XXXXXXX and XXX. XXXXXXX.
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2.4 Any property held as part of the Trust Estate which was
contributed by ARBENZ and XXX. XXXXXX shall be held by the Trustee as a separate
trust for the benefit of ARBENZ and XXX. XXXXXX pursuant to the provisions of
Article 3 below. For purposes of that separate trust, ARBENZ and XXX. XXXXXX
shall be referred to collectively as the "Trustor" and all distributions of
income, capital gains and eventually, of principal to the Trustor shall be made
in equal shares to ARBENZ and XXX. XXXXXX.
2.5 It is the intention of the Trustors that the Trustors shall
be treated as the owners of their separate trusts for federal income tax
purposes pursuant to the provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), or the corresponding provision of any subsequent federal
tax law, and the provisions of this Trust Agreement shall be interpreted
accordingly.
ARTICLE 3
SEPARATE TRUST FOR TRUSTOR
Any share set aside for any Trustor shall be held as a separate
trust on the following terms and conditions.
3.1 DISTRIBUTION OF INCOME AND CAPITAL GAINS. The
Trustee shall pay all of the net income of this trust, including any interest
paid by Buyer on the unpaid stock purchase price pursuant to the Stock
Agreement, and all capital gains of the trust estate to or for the benefit of
the Trustor, at least annually.
3.2 DISTRIBUTION OF PRINCIPAL. The Trustee shall pay to
or for the benefit of the Trustor as soon as reasonably possible after receipt,
any prepayment of the stock purchase price made by Buyer pursuant to the Stock
Agreement.
3.3 POWERS OF TRUSTOR DURING TERM OF TRUST. During the
term of the trust, the Trustor shall, with respect to his or her individual
rights under California law, have the following rights and powers:
3.3.1. Subject to the provisions of the Stock Agreement and
the Escrow Agreement, to direct in a writing delivered to the Trustee that any
income or principal of the Trust Estate which may become payable to the Trustor
under the terms of this trust be paid outright or in trust and, subject to the
terms and conditions of this Trust Agreement, to such persons and upon such
additional terms and conditions as the Trustor shall direct;
3.3.2. To the extent permitted by the Stock Agreement and
the Escrow Agreement, to direct the Trustee to take actions, or to execute
documents (including the Escrow Agreement), which the Trustor believes shall be
necessary or
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appropriate in connection with the Stock Agreement and the Escrow Agreement or
any related documents;
3.3.3. To the extent permitted by the Stock Agreement and
the Escrow Agreement, to assign the Trustor's interest in the Trust Estate; and
3.3.4. To the extent permitted by the Stock Agreement and
the Escrow Agreement, to make gifts of the Trustor's interest in the Trust
Estate to any person by an instrument in writing signed by the Trustor and
delivered to the Trustee.
3.4 TERMINATION OF TRUST; RETURN OF TRUSTOR'S ASSETS.
Upon the "Terminating Event," which shall be the earliest to occur of (i) the
close of the transaction described in the Stock Agreement and the Escrow
Agreement; or (ii) the cancellation and termination of the Stock Agreement and
the Escrow Agreement by the parties thereto; or (iii) the passage of eight (8)
years after the date of execution of the Stock Agreement, this trust shall
terminate and all of the assets then held in each separate trust hereunder shall
be returned to the Trustors, subject to the prior receipt of requisite
regulatory approvals, and shall be distributed by the Trustee to the respective
Trustor, free of trust. Except as otherwise provided herein, no principal
distribution shall be made by the Trustee from the Trust Estate until the
occurrence of the Terminating Event.
3.5 POWER OF APPOINTMENT. Upon the death of any Trustor
prior to the Terminating Event as provided in Article 3.3, any portion of such
deceased Trustor's remaining income, principal and reversionary interest in
such deceased Trustor's respective trust shall be distributed (but not until
permitted by the terms hereof) to whomsoever the Trustor shall have appointed,
including to the Trustor's own estate, outright or in trust, by the last dated
instrument delivered to the Trustee, including a Will or any Codicil thereto
(whether or not admitted to probate), specifically referring to and exercising
this power of appointment. The right to appoint hereby granted is a general
power of appointment, unrestricted as to the class of appointees, and shall be
exercisable by the Trustor alone and in all events. The Trustee shall not be
bound to inquire into any such appointment, but shall make distributions as so
directed by the Trustor, at such time as distributions shall be permitted by the
terms hereof. Any portion of a deceased Trustor's respective trust not
effectively appointed shall be distributed (but not until permitted by the terms
hereof) to the person or persons who shall be appointed to administer the estate
of such deceased Trustor, to be disposed of as part of such estate.
ARTICLE 4
COMPLIANCE WITH RULE AGAINST PERPETUITIES
Notwithstanding anything to the contrary herein contained, if
any trust, subtrust or other fund held hereunder shall not have vested according
to law within the later to occur of (i) a period of 21 years after the death of
the last survivor of the Trustors
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and Trustors' issue living at the date of this Trust Agreement or (ii) ninety
(90) years after the date of this Trust Agreement, then, on the day before the
end of such period, such trust, subtrust or fund shall nevertheless vest in and
be distributed to the beneficiaries thereof. If there is more than one person
(other than Trustors) then included in any group entitled to receive income from
that trust, that trust, subtrust or fund shall be distributed as follows: one
share to each living beneficiary of that trust who shall be on the highest
generation level with reference to a Trustor; and one share for each deceased
person on that generation level having issue then living, which share shall be
further divided into separate subshares for that issue, on a per stirpes basis,
being thereafter distributed to such issue.
ARTICLE 5
POWERS OF THE TRUSTEE
Subject to the terms and conditions of the Stock Agreement and
the Escrow Agreement and subject to the supervening powers specifically
enumerated in this Article 5, the Trustee shall have all the powers and duties
described in Division 9 of the California Probate Code. Without limiting the
generality of the foregoing, the Trustee shall have expressly the following
powers:
5.1 TRUST ASSETS AND INVESTMENTS. As provided in
Article 3.3, and upon FCC Approval of the transfer of the Class B Stock to the
Trustee, the Trustee shall own all of the Trustors' Class B Stock until the
receipt of the Stock Purchase Price (as defined in the Stock Agreement and as
provided for in the Escrow Agreement) upon the close of the transaction
described in the Stock Agreement, or until the cancellation and termination
thereof by the parties thereto or until the passage of eight (8) years after the
date of execution of the Stock Agreement. The Trustee shall be under no
obligation or duty to diversify the investments of the trust. The Trustee shall
take no action inconsistent with the directions given to the Trustee pursuant to
the Proxy.
5.2 DISTRIBUTIONS IN KIND AND NON-PRO RATA. Except as
otherwise provided herein, in any case in which the Trustee is required pursuant
to the provisions of this Trust Agreement to divide any trust property into
parts or shares for the purpose of distribution or otherwise, the Trustee may,
in the Trustee's discretion, make such division or distribution in cash, in
kind, including undivided interests in any property, or partly in cash and
partly in kind, and to make non-pro rata distributions whenever assets are
distributed in kind. For purposes of such division or distribution the Trustee
shall determine the current value of the trust properties reasonably and in good
faith.
ARTICLE 6
IRREVOCABLE TRUST
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This is an irrevocable trust, and no amendment to or revocation
of this Trust Agreement shall be effective without the written consent of all of
the Trustors and all of the parties to the Stock Agreement. No amendment shall
increase the duties or responsibilities of the Trustee, or affect the Trustee's
compensation, without the Trustee's written approval.
ARTICLE 7
DIRECTIONS TO TRUSTEE REGARDING CLASS B STOCK
7.1 The Trustee is directed to enter into the Escrow Agreement.
Upon the Stock Closing and receipt by the Trustee from the Escrow Agent of the
Stock Purchase Price, the Trustee shall distribute the Stock Purchase Price to
the separate Trustors in accordance with the rights of such separate Trustors
described in Article 2.
7.2 Upon receipt of FCC Approval of the transfer of the Class B
Stock to the Trustee 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 a new Endorsement (as defined in the Escrow
Agreement) with respect to each share certificate registered in the name of the
Trustee, and such new Endorsement shall be tendered to the Escrow Agent and the
Escrow Agent shall substitute such Endorsement for the Endorsement previously
held by the Escrow Agent which was previously executed by the Class B
Shareholders at the time their Class B Stock was deposited with the Escrow
Agent.
ARTICLE 8
RESIGNATION OF THE TRUSTEE
8.1 Any Trustee serving hereunder may resign, as to any
separate trust or as to the entire Trust Estate, by delivering written notice of
intention to resign personally or by certified mail, return receipt requested,
to each then living Trustor and to all of the parties to the Stock Agreement.
8.2 Upon the resignation of any Trustee, as to any separate
trust or as to the entire Trust Estate, a successor Trustee shall be appointed
by a written instrument signed by all of the Trustors and by all of the parties
to the Stock Agreement.
8.3 Upon the payment and delivery to any successor Trustee of
all the property and assets of any separate trust or of the entire Trust Estate,
and after full settlement of accounts, the responsibilities and liabilities of
the terminating Trustee shall cease. No successor Trustee shall be required to
investigate the acts of any predecessor Trustee, nor be responsible for any of
the acts or omissions of any predecessor Trustee.
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ARTICLE 9
COMPENSATION OF THE TRUSTEE
9.1 The Trustors shall, as and when requested by the Trustee,
pay to the Trustee all costs, charges, taxes, damages and expenses, including
reasonable attorneys fees, as the Trustee may have earned, paid or incurred by
reason of the Trustee's performance of the Trustee's duties hereunder.
9.2 Upon full execution of this Trust Agreement and
registration of the Class B Stock in the name of the Trustee, the Trustors shall
pay to the Trustee the sum of Ten Thousand Dollars ($10,000.00). Upon the Stock
Closing, the Trustors shall pay to the Trustee the sum of Five Thousand Dollars
($5,000.00). If the Stock Closing does not occur until after April 15, 1997, the
Trustors shall thereafter pay to the Trustee the sum of Ten Thousand Dollars
($10,000.00) annually, until the Terminating Event. The Trustors shall also pay
to the Trustee reasonable compensation for any extraordinary services rendered
by the Trustee, including any litigation involving the Trust Estate.
ARTICLE 10
TRUST CONTROVERSY; HOLD HARMLESS; INDEMNITY
Should any controversy arise concerning the Trust Estate or should any
demands be made upon the Trustee which are inconsistent with the terms hereof,
the Trustee shall not be required to take any action, but may refrain from all
action until the matter is resolved by agreement or appropriate legal
proceedings, or may seek relief under the California Trust Law or file a suit in
interpleader or for declaratory relief. Should any such proceeding be brought by
the Trustee, the Trustors shall hold the Trustee harmless for all reasonable
costs and reasonable attorneys fees incurred by the Trustee in connection
therewith. In addition the Trustors jointly and severally agree to indemnify the
Trustee from any and all costs, losses, claims, damages, liabilities, and
expenses, including reasonable costs of investigation, court costs, and
reasonable attorneys fees which may be imposed upon the Trustee except that
there shall be no indemnification for any portion of such costs, losses, claims,
damages, liabilities, and expenses which result from a breach of trust or a
failure to meet the standard of care set forth in Division 9 of the California
Probate Code.
ARTICLE 11
GOVERNING LAW
The validity, construction and interpretation of this Trust Agreement
shall be governed by the laws of the State of California, now or hereafter
enacted, notwithstanding
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the domicile or residence of the Trustee, any Trustor
or other beneficiary hereunder or the situs of any part of the Trust Estate.
ARTICLE 12
COUNTERPARTS; EXECUTION
This Trust 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 Trust Agreement.
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DECLARATION AND SIGNATURES
The Trustors and the Trustee declare that they have read the
foregoing Trust Agreement and that it correctly states the terms and conditions
under which the Trustee shall hold, administer, and distribute the Trust Estate.
The Trustors approve the Trust Agreement in all particulars, and the Trustee
consents to serving as Trustee in accordance with all the directions, terms and
conditions provided for herein.
Trustors:
Dated:___________________ ________________________________
XXXX X. XXXXX
Dated:___________________ ________________________________
XXXXXXXXX X. XXXXX
Dated:___________________ ________________________________
XXXXX X. XXXXXXXXXXX
Dated:___________________ ________________________________
XXXXX XXXXXXXXXXX
Dated:___________________ ________________________________
XXXXXX X. XXXXXXX
Dated:___________________ ________________________________
XXXXX XXXXXXX
Dated:___________________ ________________________________
XXXXXXX X. XXXXXX
Dated:___________________ ________________________________
XXXXX XXXXXX
Dated:___________________ ________________________________
XXXXXXX X. XXXXX, Trustee
[SIGNATURE PAGE TO TRUST AGREEMENT
DATED AS OF FEBRUARY 20, 1996]
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXX X. XXXXX
__________ personally known to me
or
__________ proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
___________________________
(SEAL)
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXXXXXXX X. XXXXX
__________ personally known to me
or
__________ proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that she executed the same in her authorized capacity, and
that by her signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________
(SEAL)
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXXX X. XXXXXXXXXXX
__________ personally known to me
or
__________proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
(SEAL)
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXXX XXXXXXXXXXX
__________ personally known to me
or
__________proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that she executed the same in her authorized capacity, and
that by her signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
(SEAL)
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXXXX X. XXXXXXX
__________ personally known to me
or
__________proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
(SEAL)
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXXX XXXXXXX
__________ personally known to me
or
__________proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that she executed the same in her authorized capacity, and
that by her signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
(SEAL)
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXXXXX X. XXXXXX
__________ personally known to me
or
__________proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
(SEAL)
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXXX XXXXXX
__________ personally known to me
or
__________proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that she executed the same in her authorized capacity, and
that by her signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
(SEAL)
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STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On ______________, 1996, before me, the undersigned Notary Public, personally
appeared XXXXXXX X. XXXXX
__________ personally known to me
or
__________proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
(SEAL)
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