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Exhibit 10.29
OPTION AGREEMENT
OPTION AGREEMENT, dated December 10, 1999 by and between Xxxx X. Xxxxxxx,
having an address at 00 Xxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxx 00000 ("GRC"), and LIN
Television Corporation, a Delaware corporation with an address at 0 Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 ("LIN").
WITNESSETH:
WHEREAS, GRC owns 100 shares of common stock, par value $.01 per share, of
WWLP Holdings, Inc., a Delaware corporation ("WWLP HOLDINGS"), constituting all
of the issued and outstanding capital stock of WWLP Holdings; and
WHEREAS, WGRC, Inc., a Delaware corporation ("WGRC"), an indirect wholly
owned subsidiary of WWLP Holdings, has entered into an Asset Exchange Agreement,
dated December 10, 1999, by and among WGRC, Benedek Broadcasting Corporation and
Benedek License Corporation (the "ASSET EXCHANGE AGREEMENT"), and LIN has
guaranteed the obligations of WGRC under such Asset Exchange Agreement; and
WHEREAS, WWLP Holdings and its subsidiaries have entered into certain
financing arrangements with The Chase Manhattan Bank in connection with the
transactions contemplated by the Asset Exchange Agreement (the "CHASE
FINANCING"), and LIN has provided (i) a guaranty of the obligations of WWLP,
Inc., a Delaware corporation and a direct wholly owned subsidiary of WWLP
Holdings, and (ii) a deficiency payment agreement relating to the obligations of
WGRC, in connection with the Chase Financing; and
WHEREAS, LIN has provided cash collateral in support of WGRC's letter of
credit to Benedek issued as a deposit under the Asset Exchange Agreement, and
LIN has entered into an escrow agreement in connection therewith; and
WHEREAS, to induce LIN to enter into the arrangements described above, GRC
has agreed to grant to LIN an option to purchase all issued and outstanding
shares of Common Stock of WWLP Holdings;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
Section 1. PURCHASE OPTION. GRC hereby grants to LIN or its permitted
assignee the option (the "PURCHASE OPTION") to purchase all of the issued and
outstanding shares of capital stock of WWLP Holdings now or hereafter held by
GRC (the "SHARES"), for the purchase price set forth in Section 3 of this
Agreement. The Purchase Option shall be exercisable at LIN's sole election at
any time during the period (the "OPTION PERIOD") beginning on the Closing Date
(as defined in the Asset Exchange
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Agreement) and ending at midnight, E.S.T., on the first anniversary of such
Closing Date. To exercise the Purchase Option, LIN must provide written notice
of exercise to GRC at his address set forth above prior to expiration of the
Option Period. The date on which GRC receives such notice is referred to herein
as the "Exercise Date." The Option Period may be extended on terms to be
mutually agreed by the parties hereto, acting in good faith.
Section 2. REGULATORY APPROVALS; OPTION CLOSING DATE.
(a) Each of the parties hereto shall use its reasonable best efforts and
shall cooperate in preparing and filing (i) appropriate notifications under the
Xxxx-Xxxxx-Xxxxxx Antirust Improvements Act of 1976, as amended (the "HSR Act")
and (ii) an application (the "FCC Application") with the Federal Communications
Commission (the "FCC") to obtain the FCC's consent to the transfer of control to
LIN (or its subsidiary) of all FCC permits and authorizations that are required
to be held in connection with the operation of the television station WWLP (TV)
(the "FCC Consent"), as soon as practicable following the Exercise Date.
(b) The Closing hereunder shall be held on a date (the "Option Closing
Date") specified by LIN that is not later than ten (10) days following the date
on which (i) all periods provided by statute or FCC regulations for filing any
requests for administrative or judicial review, reconsideration, or appeal or
stay of the FCC Consent, or for the FCC to set aside the FCC Consent on its own
motion, have expired and (ii) the waiting period under the HSR Act applicable to
the purchase and sale of the Shares shall have expired or been terminated.
Section 3. PURCHASE PRICE. The purchase price payable by LIN to GRC for the
Shares on the Option Closing Date shall be $100.
Section 4. REPRESENTATIONS AND WARRANTIES OF LIN.
(a) LIN is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly qualified to do
business as a foreign corporation where such qualification is necessary, except
for those jurisdictions where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on LIN's
ability to perform its obligations under this Agreement. LIN has the full
corporate power and authority to enter into and perform the terms of this
Agreement and to carry out the transactions contemplated hereby.
(b) The execution and delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly and validly
authorized by all necessary actions of LIN (none of which actions has been
modified or rescinded and all of which actions are in full force and effect),
including approval of its board of directors. This Agreement has been duly
executed and delivered by LIN and constitutes a valid and binding agreement and
obligation of LIN, enforceable against LIN in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general applicability
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relating to or affecting creditors' rights generally and by the application of
general principles of equity.
(c) The execution and delivery by LIN of this Agreement does not, and the
consummation by LIN of the transactions contemplated hereby and compliance by
LIN with the provisions hereof will not, result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or the loss
of a benefit under, or result in the creation of any lien upon any of the
properties or assets of LIN under, (i) any provision of the certificate of
incorporation or by-laws of LIN, (ii) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other material contract or agreement, or any
material permit, concession, franchise or license applicable to LIN or (iii)
assuming all the consents, filings and registrations referred to in Section 2
are made and obtained, any law, statute, governmental regulation or order (a
"Law"), the violation of which would reasonably be expected to result in a
material adverse effect on LIN's ability to perform its obligations under this
Agreement.
(d) Except as contemplated by Section 2 of this Agreement, no filing or
registration with, or authorization, consent or approval of, any governmental
authority is required in connection with the execution and delivery of this
Agreement by LIN or is necessary for the consummation of the transactions
contemplated by this Agreement by LIN.
Section 5. REPRESENTATIONS AND WARRANTIES OF GRC.
(a) GRC has the legal capacity, power and authority to enter into and
perform the terms of this Agreement and to carry out the transactions
contemplated hereby.
(b) This Agreement has been duly executed and delivered by GRC and
constitutes a valid and binding agreement and obligation of GRC, enforceable
against GRC in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity.
(c) The execution and delivery by GRC of this Agreement does not, and the
consummation by GRC of the transactions contemplated hereby and compliance by
GRC with the provisions hereof will not, result in any violation of, or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or the loss
of a benefit under, any other material agreement to which GRC is a party.
(d) Except as contemplated by Section 2 of this Agreement, no filing or
registration with, or authorization, consent or approval of, any governmental
authority is required by in connection with the execution and delivery of this
Agreement by GRC or
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is necessary for the consummation of the transactions contemplated by this
Agreement by GRC.
(e) Schedule 5(e) to this Agreement sets forth, with respect to each of
WWLP Holdings, WWLP and WGRC, (i) the number of shares of authorized capital
stock of such corporation, (ii) the number of shares of capital stock of such
corporation outstanding, and (iii) the name of each holder of shares of capital
stock of such corporation. Each of WWLP Holdings and its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all requisite corporate power and authority to
conduct its business as currently proposed to be conducted. Except as reflected
on Schedule 5(e), WWLP Holdings has no subsidiaries and does not own, directly
or indirectly, any shares of capital stock or other security of, or any material
investment in, any other entity.
(f) Except for obligations incurred in connection with their respective
incorporation, and the negotiation and execution of the Asset Exchange
Agreement, the letter of credit contemplated thereby, an Assignment and
Assumption Agreement entered into in connection with the Asset Exchange
Agreement, and commitments in connection with the Chase Financing, neither WGRC,
WWLP, nor WWLP Holdings has incurred any obligation or liability or engaged in
any business or activity of any kind.
Section 6. CONTROL OF WWLP HOLDING'S OPERATIONS. Notwithstanding any other
provision of this Agreement, prior to the Option Closing Date, control of
WWLP(TV)'s television broadcast operations shall remain with GRC. GRC and LIN
acknowledge and agree that neither LIN nor any of its employees, affiliates,
agents or representatives, directly or indirectly, shall, or have any right to
control, direct or otherwise supervise, or attempt to control, direct or
otherwise supervise, such broadcast and other operations, it being understood
that supervision of all programs, equipment, operations and other activities of
such broadcast and other operations shall be the sole responsibility, and at all
times prior to the Option Closing Date remain within the complete control and
discretion of GRC.
Section 7. REASONABLE BEST EFFORTS. Upon the terms and subject to the
conditions set forth in this Agreement, including, without limitation, exercise
of the Purchase Option, each of the parties agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
reasonably necessary, proper or advisable, in each case under all Laws, to
consummate and make effective, in the most expeditious manner practicable
following the Exercise Date, the transactions contemplated by this Agreement,
including (i) the obtaining of all necessary actions, waivers, consents,
licenses and approvals from governmental authorities and the making of all
necessary registrations and filings (including filings with governmental
authorities) and the taking of all reasonable steps as may be necessary to
obtain an approval, waive or license from, or to avoid an action or proceeding
by, and governmental authority, (ii) the defending of any lawsuit or other legal
proceedings, whether judicial or administrative, challenging this Agreement,
including seeking to have any stay or temporary restraining order entered by any
court or other governmental authority vacated or reversed and (iii) the
execution
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and delivery of any additional instruments reasonably necessary to consummate
the transactions contemplated by this Agreement.
Section 8. CONDUCT OF BUSINESS. During the period from the date hereof to
the Option Closing Date, GRC, shall, and shall cause WWLP Holdings and its
subsidiaries to, taking into account any matters that may arise that are
attributable to the pendency of the transactions contemplated by the Asset
Exchange Agreement, conduct the business of WWLP Holdings and its subsidiaries
and, when applicable, the business of WWLP(TV), only in the ordinary course,
consistent with past practice. In addition, from and after the date hereof to
the Option Closing Date, GRC shall not permit WWLP Holdings and its subsidiaries
to, without the prior written consent of LIN (which consent shall not be
unreasonably withheld or delayed):
(a) amend its Certificate of Incorporation, By-Laws or other comparable
charter or organizational documents or merge with or into or consolidate with
any other person;
(b) issue, sell, pledge, dispose of or encumber, or authorize or propose
the issuance, sale, pledge, disposition or encumbrance of, any shares of, or
securities convertible or exchangeable for, or options, puts, warrants, calls,
commitments or rights of any kind to acquire, any of its capital stock or
subdivide or in any way reclassify any shares of its capital stock or change or
agree to change in any manner the rights of its outstanding capital stock;
(c) declare, set aside or pay any dividend or other distribution with
respect to any shares of any class or series of capital stock of WWLP Holdings;
split, combine or reclassify any shares of any class or series of capital stock
of WWLP Holdings or its subsidiaries; or redeem, purchase or otherwise acquire
directly or indirectly any shares of any class or series of capital stock of
WWLP Holdings, or any instrument or security which consists of or includes a
right to acquire such shares;
(d) organize any new subsidiary or acquire any capital stock of, or equity
or ownership interest in, any other entity;
(e) adopt a plan of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization of WWLP
Holdings or any of its subsidiaries;
(f) take any action that would or is reasonably likely to materially impair
the ability of GRC or LIN to consummate the Purchase Option in accordance with
the terms hereof or materially delay such consummation; and
(g) authorize any of, or commit or agree to take any of, the actions
referred to in paragraphs (a) through (f) above.
Section 9. RESTRICTIONS ON TRANSFER OF SHARES, PROXIES AND
NON-INTERFERENCE. Beginning on the date hereof and ending on the last date of
the Option Period, GRC shall not, directly or indirectly, (i) offer for sale,
sell, transfer, tender,
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pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of his Shares or any interest therein; (ii) grant any
proxies or powers of attorney, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any action
that would make any representation or warranty of GRC contained herein untrue or
incorrect or have the effect of preventing or disabling GRC from performing his
obligations under this Agreement.
Section 10. PARTIES IN INTEREST. This Agreement shall be binding upon an
inure solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 11. ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, such remedy being in addition to any
other remedy to which any party is entitled at law or in equity.
Section 12. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with the laws of the State of New York, regardless of
the laws that might otherwise govern under the applicable principles of
conflicts of law.
Section 13. EXPENSES AND TRANSFER TAXES. LIN shall pay all expenses
incurred in connection with this Agreement and in the preparation for the
consummation of the transactions provided for herein. Without limiting the
generality of the foregoing, LIN shall pay (a) any sales (including, without
limitation, bulk sales), use, documentary, stamp, gross receipts, registration,
transfer, conveyance, excise, recording, license and other similar Taxes and
fees ("Transfer Taxes") applicable to, imposed upon or arising out of the
transactions contemplated hereby whether now in effect or hereinafter adopted
and regardless of which party such Transfer Tax is imposed upon, (b) any FCC
filing fees incurred in connection with the assignment of the FCC licenses
relating to WWLP(TV), and (c) any fees and expenses incurred in connection with
any HSR Filings.
Section 14. BENEFIT AND ASSIGNMENT. Except as hereinafter specifically
provided in this Section 14, no party hereto shall assign this Agreement, in
whole or in part, whether by operation of law or otherwise, without the prior
written consent of the other party hereto; and any purported assignment contrary
to the terms hereof shall be null, void and of no force and effect. XXX xxx
assign all of its rights and obligations hereunder to any direct or indirect
wholly owned subsidiary of its, provided that no such assignment shall relieve
LIN of any of its obligation under this Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns as permitted hereunder.
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Section 15. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreement, commitments or understandings with respect to
such matters. No amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by the party or
parties against whom enforcement of the amendment, modification or discharge is
sought.
Section 16. SEVERABILITY. If any party of any provision of this Agreement
or any other contract, agreement, document or writing given pursuant to or in
connection with this Agreement shall be invalid or unenforceable under
applicable law, such party shall be ineffective to the extent of such invalidity
or unenforceability only, without in any way affecting the remaining parts of
such provisions or the remaining provisions of said contract, agreement,
document or writing.
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IN WITNESS WHEREOF, each of the parties hereto has, or has caused, this
Agreement to be duly executed and delivered as of the day and year first above
written.
_________________________
Xxxx X. Xxxxxxx
LIN TELEVISION CORPORATION
By: ______________________
Name:
Title:
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