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EXHIBIT 10.155.1
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PURCHASE AND SALE OF OPTION AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇ COMMUNICATIONS OF
ATLANTA-14, INC.
AND
GLOBAL BROADCASTING SYSTEMS, INC
* * *
MARCH 26, 1997
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PURCHASE AND SALE OF OPTION AGREEMENT
This PURCHASE AND SALE OF OPTION AGREEMENT is made as of March 26,
1997, by and between ▇▇▇▇▇▇ Communications of Atlanta-14, Inc., a Florida
corporation ("▇▇▇▇▇▇"), and Global Broadcasting Systems, Inc., a Delaware
corporation ("Buyer").
RECITALS
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Media, Inc. ("▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇▇▇ Broadcasting
of Georgia, Inc. ("▇▇▇▇▇▇▇▇▇-Broadcasting") and ▇▇▇▇▇▇▇▇▇ Media of Georgia,
Inc. ("▇▇▇▇▇▇▇▇▇-Georgia") ("▇▇▇▇▇▇▇▇▇-Broadcasting and ▇▇▇▇▇▇▇▇▇-Ohio are
collectively referred to herein as the "Sellers" and individually as a
"Seller") are parties to an Option Agreement dated December 29, 1995 as amended
on December 31, 1996, and further amended on March 26, 1997 (as amended, the
"Option Agreement"), pursuant to which Sellers have granted to ▇▇▇▇▇▇ an
exclusive and irrevocable option (the "Option") to purchase the assets, real
personal and mixed, tangible and intangible, owned and held by Sellers that are
used or useful in the conduct of the business and operations of Television
Station WNGM(TV), Channel 34, Athens, Georgia (the "Station") (such assets are
referred to herein as the "Station Assets").
▇. ▇▇▇▇▇▇▇ own all of the Station Assets, including all of the
licenses, permits and other authorizations issued by the Federal Communications
Commission (the "FCC") in connection with the Station.
C. Buyer has agreed to buy and ▇▇▇▇▇▇ has agreed to sell to buyer the
Option on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the above and of the mutual promises
and covenants contained herein, and other good and valuable consideration, the
parties, intending to be legally bound, agree as follows:
1. Assignment of Option. ▇▇▇▇▇▇ hereby grants, sells, assigns and
transfers to Buyer all of its rights, title and interest in and to the Option
and to the Option Agreement subject to the terms and conditions hereof.
2. Acceptance. Buyer hereby accepts the assignment of all of ▇▇▇▇▇▇'▇
rights, title and interest in and to the Option an the Option Agreement and
hereby agrees to assume all of ▇▇▇▇▇▇'▇ obligations thereunder subject to the
terms and conditions hereof.
3. Exercise of Option. Simultaneously with the execution of this
Agreement, Buyer shall exercise the Option by executing the Asset Purchase
Agreement in the form attached hereto as Exhibit A (the "Purchase Agreement")
and ▇▇▇▇▇▇ shall advise the Sellers in writing of the option assignment and
exercise and provide Sellers with a copy of the Purchase Agreement.
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4. Performance of Purchase Agreement. Buyer hereby agrees to use good
faith efforts to consummate the transactions contemplated by the Purchase
Agreement, including, without limitation, to file and prosecute any and all
applications with the FCC which are required by the Purchase agreement. Buyer
hereby agrees to comply with the terms and provisions of the Purchase
Agreement. Buyer shall not otherwise amend or change any terms of the Purchase
Agreement without the consent of ▇▇▇▇▇▇ if (i) such amendment or change is
reasonably likely to cause the transactions contemplated by the Purchase
agreement not to be consummated or to be delayed or (ii) such amendment or
change is reasonably likely to reduce the Purchase Price (as defined below)
payable hereunder by Buyer to ▇▇▇▇▇▇. Nothing contained in this Section 4 shall
limit Buyers's rights under the Purchase Agreement or limit Buyer's rights to
terminate the Purchase Agreement in accordance with the terms thereof.
5. Purchase Price. In consideration for the assignment by ▇▇▇▇▇▇ of
its rights, title and interest in and to the Option and the Option Agreement,
Buyer hereby agrees to pay ▇▇▇▇▇▇ a purchase price (the "Purchase Price") equal
to $50,000,000 reduced by (i) the amount of the purchase price payable to
Sellers under the Purchase Agreement less the amount of any advance toward the
payment of such purchase price paid by ▇▇▇▇▇▇ to Sellers prior to the closing
date under the Purchase Agreement pursuant to the Option Agreement, as amended
and (ii) the portion of the principal amount outstanding, together with accrued
and unpaid interest, under the Credit Agreement dated as of December 29, 1995
(the "Credit Agreement"), among ▇▇▇▇▇▇▇▇▇ and its Affiliates, the several
Lenders from time to time parties thereto, CIBC Inc., as Documentation Agent,
and Banque Paribas as Administrative Agent that is allocable to the Station as
set forth in Schedule 6.03 to the Credit Agreement and Section 2.4 of the
Purchase Agreement, as of the Purchase Agreement Closing Date (as defined
below) (the "Payoff Amount"). The Purchase Price shall be further reduced on
the purchase Agreement Closing Date by the Escrow Deposit described in Section
7 [which portion of the Purchase Price shall be paid in accordance with
Sections 7(a) and (b)]. The Purchase Price shall be paid by Buyer to ▇▇▇▇▇▇
on the closing date under the Purchase Agreement (the "Purchase Agreement
Closing Date") by wire transfer of immediately available funds to an account
designated by ▇▇▇▇▇▇.
6. Pay-Off Amount. On the Closing Date, Buyer shall pay or cause to
be paid the Payoff Amount to the Lenders under the Purchase Agreement.
7. Escrow. No later than April 4, 1997, Buyer shall deposit in escrow
with First Union National Bank of Florida (the "Escrow Agent") $5,000,000 (the
"Escrow Deposit"). The Escrow Deposit shall be held in accordance with the
terms hereof and the Escrow Agreement attached hereto as Exhibit B. The Escrow
Deposit shall be payable as follows:
(a) On the Purchase Agreement Closing Date, $4,500,000 of the
Escrow Deposit shall be disbursed to ▇▇▇▇▇▇ as a credit towards the payment by
Buyer of the Purchase Price and any interest or other proceeds from the
investment of the Escrow Deposit shall be disbursed to Buyer.
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(b) $500,000 of the Escrow Deposit (the "Indemnification
Fund") shall remain in the Escrow Account for twelve months after closing as
security for any liability of Sellers to Buyer under Section 10 of the Purchase
Agreement. The Indemnification Fund, less any reserves or deductions to cover
Sellers' indemnification obligations to Buyer under Section 10 of the Purchase
Agreement, shall be disbursed to ▇▇▇▇▇▇, along with all accrued interest
thereon, at the expiration of the aforesaid twelve-month period.
(c) The Escrow Deposit shall be disbursed to ▇▇▇▇▇▇ if the
Purchase Agreement is terminated by Sellers due to Buyer's material breach of
the Purchase Agreement. In such event, any and all interest earned on the
Escrow Deposit shall be paid to Buyer.
(d) The Escrow Deposit together with any interest or other
proceeds earned thereon shall be disbursed to Buyer if the Purchase Agreement
is terminated pursuant to Section 9.1 or 9.2 of the Purchase Agreement and
Buyer is not in material breach of the Purchase Agreement.
If the Escrow Deposit is disbursed to ▇▇▇▇▇▇ pursuant to Section 7(c),
then such payment shall be liquidated damages and shall constitute full payment
and the exclusive remedy for any damages suffered by ▇▇▇▇▇▇ by reason of
Buyer's breach of this Agreement or the Purchase Agreement. ▇▇▇▇▇▇ and Buyer
agree in advance that actual damages would be difficult to ascertain and that
the amount of the Escrow Deposit is a fair and equitable amount to reimburse
▇▇▇▇▇▇ for damages sustained due to Buyer's breach of this Agreement or the
Purchase Agreement.
8. Unwind. The assignment by ▇▇▇▇▇▇ of its rights, title and
interest in and to the Option and the Option Agreement to Buyer shall be
automatically rescinded, all rights, title and interest of ▇▇▇▇▇▇ in and to
the Option and the Option Agreement shall be automatically returned to ▇▇▇▇▇▇
and this Agreement shall be automatically rescinded and terminated if (i) the
transactions contemplated by the Purchase Agreement have not been consummated
prior to April 1, 1998, or (ii) the Purchase Agreement is terminated for any
reason whatsoever.
9. Representations and Warranties of ▇▇▇▇▇▇.
▇▇▇▇▇▇ hereby represents and warrants to Buyer as follows:
(a) Organization, Standing Authority, Ownership. ▇▇▇▇▇▇ is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida and has the requisite corporate power and
authority to execute, deliver, and perform this Agreement in accordance with
its terms.
(b) Authorization and Binding Obligation. The execution,
delivery and performance of this Agreement by ▇▇▇▇▇▇ have been duly authorized
by all necessary corporate
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action on the part of ▇▇▇▇▇▇. This Agreement has been duly executed and
delivered by ▇▇▇▇▇▇ and constitutes a legal, valid, and binding obligation of
▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇ in accordance with its terms except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally and by judicial discretion
in the enforcement of equitable remedies.
(c) Absence of Conflicting Agreements. Subject to the receipt of
the consent of the Lenders under the Credit Agreement, the execution, delivery
and performance by ▇▇▇▇▇▇ of this Agreement and the documents contemplated
hereby (with or without the giving of notice, the lapse of time, or both): (i)
do not require the consent of any third party; (ii) will not conflict with the
Articles of Incorporation or By-laws of ▇▇▇▇▇▇; (iii) will not conflict with,
result in a breach of, or constitute a default under, any applicable law,
judgment, order, ordinance, injunction, decree, rule, regulation, or ruling of
any court or governmental instrumentality; and (iv) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license or permit to which
▇▇▇▇▇▇ is a party or by which ▇▇▇▇▇▇ may be bound.
(d) Brokers. Other than Media Venture Partners (whose fee will be
paid by ▇▇▇▇▇▇), neither ▇▇▇▇▇▇ nor any person or entity acting on its behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
(e) Ownership of the Option. ▇▇▇▇▇▇ is the lawful owner of the
Option free and clear of all liens, security interests, claims or encumbrances
of any nature whatsoever and has the right under the Option Agreement to
transfer the Option of Buyer. Pursuant to Section 3 hereof, ▇▇▇▇▇▇ will give to
Sellers the notices required by the Option Agreement to effectuate this
assignment. The Option Agreement is in full force and effect.
(f) Litigation. There are not claims, disputes, actions,
proceedings, suits, arbitrations or investigations pending or to ▇▇▇▇▇▇'▇
knowledge, threatened, relating to the Option or the Option Agreement.
10. Representations and Warranties of Buyer.
Buyer hereby represents and warrants to ▇▇▇▇▇▇ as follows:
(a) Organization, Standing Authority and Ownership. Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate power and
authority to execute, deliver, and perform this Agreement and the Purchase
Agreement and to perform the Option Agreement in accordance with their terms.
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(b) Authorization and Binding Obligation. The execution,
delivery and performance of this Agreement and the Purchase Agreement by Buyer
and the performance of the Option Agreement by Buyer have been duly authorized
by all necessary corporate action on the part of Buyer. This Agreement has been
duly executed and delivered by Buyer and constitutes a legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms
except as the enforceability of this Agreement may be affected by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by
judicial discretion in the enforcement of equitable remedies.
(c) Absence of Conflicting Agreements. The execution, delivery
and performance by Buyer of this Agreement and the Purchase Agreement and the
performance by Buyer of the Option Agreement (with or without the giving of
notice, the lapse of time or both): (i) do not require the consent of any third
party; (ii) will not conflict with the Certificate of Incorporation or By-laws
of Buyer; (iii) will not conflict with, result in a breach of, or constitute a
default under, any applicable law, judgment, order, ordinance, injunction,
decree, rule, regulation or ruling of any court or governmental instrumentality;
and (iv) will not conflict with, constitute grounds for termination of, result
in breach of, constitute a default under, or accelerate or permit the
acceleration of any performance required by the terms of, any agreement,
instrument, license or permit to which Buyer is a party or by which Buyer may be
bound.
(d) Brokers. Neither Buyer nor any person or entity acting on
its behalf has incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
11. Miscellaneous.
(a) Attorneys' Fees. In the event either party files a
lawsuit or institutes other formal proceedings (including arbitration) for any
remedy available under this Agreement, the prevailing party shall be entitled
to be reimbursed by the other party for all reasonable expenses incurred
hereby, including reasonable attorneys fees.
(b) Fees and Expenses. Except as provided in Subsection (a)
of this Section, each party shall pay its own expenses incurred in connection
with the authorization, preparation, execution and performance of this
Agreement, including all fees and expenses of counsel, accountants, agents and
representatives. Each party shall be reasonable for all fees or commissions
payable to any other finder, broker, advisor, or similar person retained by or
on behalf of such party.
(c) Arbitration. Except as otherwise provided to the contrary
below, any dispute arising out of or related to this Agreement that the parties
hereto are unable to resolve by themselves shall be settled by arbitration by a
panel of three (3) neutral arbitrators (meaning arbitrators who have had no
prior relationship with the parties or their respective
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stockholders, directors, officers, or employees) who shall be selected in
accordance with the procedures set forth in the commercial arbitration rules of
the American Arbitration Association. The persons selected as arbitrators shall
have prior experience in the broadcasting industry but need not be professional
arbitrators, and persons such as lawyers, accountants, brokers and bankers
shall be acceptable. Before undertaking to resolve the dispute, each arbitrator
shall be duly sworn faithfully and fairly to hear and examine the matters in
controversy and to make a just award according to the best of his or her
understanding. The arbitration hearing shall be conducted in accordance with
the commercial arbitration rules of the American Arbitration Association in
Washington, D.C. The written decision of a majority of the arbitrators shall be
final and binding on the parties hereto. The costs and expenses of the
arbitration proceeding shall be assessed between the parties hereto in a manner
to be decided by a majority of the arbitrators in accordance with Section
11 of this Agreement, and the assessment shall be set forth in the decision and
award of the arbitrators. Judgment on the award, if it is not paid within
thirty days, may be entered in any court having jurisdiction over the matter.
No action at law or suit in equity based upon any claim arising out of or
related to this Agreement shall be instituted in any court by any party hereto
against the other except (i) an action to compel arbitration pursuant to this
Section or (ii) an action to enforce the award of the arbitration panel
rendered in accordance with this Section.
(d) Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) delivered by personal delivery, or sent by commercial delivery
service or registered or certified mail, return receipt requested, (c) deemed
to have been given on the date of personal delivery or the date set forth in
the records of the delivery service or on the return receipt, and (d) addressed
as follows:
If to Buyer: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
Global Broadcasting Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Global Broadcasting Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
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▇▇▇▇▇ ▇. Paper, Esquire
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
If to ▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
▇▇▇▇▇▇ Communications of
Altanta-14, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Esq.
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this
Section 11(d).
(e) Benefit and Binding Effect. Neither party hereto may assign
this Agreement without the prior written consent of the other party hereto;
provided, that Buyer may assign this Agreement to any entity controlled by the
same principals who control Buyer. Subject to the preceding sentence, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
(f) Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
(h) Headings. The headings in this Agreement are included for ease
of reference only and shall not control or affect the meaning or construction
of the provisions of this Agreement.
(i) Gender and Number. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other
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gender, masculine, feminine, or neuter, and any other number, singular or
plural, as the context requires.
(j) Entire Agreement. This Agreement represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof. This Agreement supersedes all prior and contemporaneous
negotiations between the parties and cannot be amended. supplemented, or
changed except by an agreement in writing that makes specific reference to this
Agreement and which is signed by the party against which enforcement of any
such amendment, supplement, or modification is sought.
(k) Press Release. Neither party shall publish any press
release, make any other public announcement or otherwise communicate with any
news media concerning this Agreement or the transactions contemplated hereby
without the prior written consent of the other party; provided, however, that
nothing contained herein shall prevent either party from promptly making all
filings with governmental authorities as may, in its judgement be required or
advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, provided further,
that, notwithstanding the foregoing, Buyer may file this Agreement or provide
notification of it in any Form S-1 Registration Statement or any amendment
thereof filed or to be filed with the Securities and Exchange Commission.
(l) Conterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart wre upon the same
instrument.
(m) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. Within ten (10) days after execution
of the Purchase Agreement by Buyer and Sellers, ▇▇▇▇▇▇ and Buyer will mutually
determine whether any application or other documents need to be filed with the
Federal Trade Commission or the Department of Justice under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976 ("HSR") with respect to
this Agreement, and, if so, (i) ▇▇▇▇▇▇ and Buyer will file such application or
other documents at the expiration of the aforesaid 10-day period; (ii) equally
divide the cost of the filing fee; and (iii) refrain from consummating this
Agreement until the expiration of the waiting period under HSR.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first written above.
▇▇▇▇▇▇ COMMUNICATIONS OF
ATLANTA-14, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
GLOBAL BROADCASTING SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President