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EXHIBIT 10.155
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PURCHASE AND SALE OF OPTION AGREEMENT
BY AND BETWEEN
XXXXXX COMMUNICATIONS OF
CLEVELAND-67, 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 Xxxxxx Communications of Cleveland-67, Inc., a Florida
corporation ("Xxxxxx"), and Global Broadcasting Systems, Inc., a Delaware
corporation ("Buyer").
RECITALS
X. Xxxxxx, Xxxxxxxxx Media, Inc. ("Xxxxxxxxx"), Xxxxxxxxx
Broadcasting of Ohio, Inc. ("Xxxxxxxxx-Broadcasting") and Xxxxxxxxx Media of
Ohio, Inc. ("Xxxxxxxxx-Ohio") (Xxxxxxxxx-Broadcasting and Xxxxxxxxx-Ohio are
collectively referred to herein as the "Sellers" and individually as a "Seller")
are parties to an Option Agreement (the "Option Agreement"), dated December 29,
1995 as amended on December 31, 1996 and as further amended on March 21, 1997
(as amended, the "Option Agreement"), pursuant to which Sellers have granted to
Xxxxxx 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 WOAC (TV), Channel 67, Canton, Ohio (the "Station") (such
assets are referred to herein as the "Station Assets").
X. Xxxxxxx own all of the Station Assets, including all of the
licenses, permits and other authorizations issued by the Federal Communications
commissions (the "FCC") in connection with the Station.
C. Buyer has agreed to buy and Xxxxxx 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. Xxxxxx 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
Xxxxxx'x rights, title and interest in and to the Option and the Option
Agreement and hereby agrees to assume all of Xxxxxx'x 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 Xxxxxx 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 Xxxxxx 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 Xxxxxx. Nothing contained in this Section 4 shall
limit Buyer'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 Xxxxxx
of its rights, title and interest in and to the Option and the Option
Agreement, Buyer hereby agrees to pay Xxxxxx a purchase price (the "Purchase
Price") equal to $23,500,000 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 Xxxxxx 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 Xxxxxxxxx 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 (c)]. The Purchase Price shall be paid by
Buyer to Xxxxxx on the closing date under the Purchase Agreement (the "Purchase
Agrement Closing Date") by wire transfer of immediately available funds to an
account designated by Xxxxxx.
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")
$2,350,000 (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, $1,850,000 of
the Escrow Deposit shall be disbursed to Xxxxxx 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 lability of Sellers to Buyer under Section 10 of the Pruchase
Agreement. The Indemnification Fund, less any reserves or deductions to cover
Sellers' indemnification obligations to Buyer under Section 10 of the Pruchase
Agreement, shall be disbursed to Xxxxxx, along with all accrued interest
thereon, at the expiration of the aforesaid twelve-month period.
(c) The Escrow Deposit shall be disbursed to Xxxxxx if the Purchase
Agreement is terminated by Sellers due to Buyer's material breach of the
Pruchase Agreement. In such event, any and all interest earned on the Escrow
Deposit shall be paid to Buyer.
(c) The Escrow Deposit together with any interest or other proceeds
earned thereon shall be disbursed to Buyer if the Pruchase Agreement is
terminated pursuant to Section 9.1 or 9. of the Pruchase Agreement and Buyer is
not in material breach of the Pruchase Agreement.
If the Escrow Deposit is disbursed to Xxxxxx 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 Xxxxxx by reason of
Buyer's breach of this Agreement or the Purchase Agreement. Xxxxxx 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
Xxxxxx for damages sustained due to Buyer's breach of this Agreement or the
Pruchase Agreement.
8. Unwind. The assignment by Xxxxxx of its rights, title and interest
in and to the Option and the Option Agrement to Buyer shall be automatically
rescinded, all rights, title and interest of Xxxxxx in and to the Option and
the Option Agreement shall be automatically returned to Xxxxxx and this
Agrement shall be automatically rescinded and terminated it (i) the
transactions contemplated by the Pruchase Agreement have not been consummated
prior to April 1, 1998, or (ii) the Pruchase Agrement is terminated for any
reason whatsoever.
9. Representations and Warranties of Xxxxxx.
Xxxxxx hereby represents and warrants to Buyer as follows:
(a) Organization, Standing, Authority, Ownership. Xxxxxx 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 executive, delivery perform this Agreement in accordance with its
terms.
(b) Authorization and Binding Obligation. The execution delivery
and performance of this Agrement by Xxxxxx have been duly authorized by all
necessary corporate
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action on the part of Xxxxxx. This Agreement has been duly executed and
delivered by Xxxxxx and constitutes a legal, valid, and binding obligation of
Xxxxxx, enforceable against Xxxxxx 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 Agreement. Subject to the receipt
of the consent of the Lenders under the Credit Agreement, the execution,
delivery and performance by Xxxxxx 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 Xxxxxx; (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
Xxxxxx is a party or by which Xxxxxx may be bound.
(d) Brokers. Other than Media Venture Partners (whose fee
will be paid by Xxxxxx), neither Xxxxxx 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. Xxxxxx 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 to Buyer. Pursuant to Section 3 hereof, Xxxxxx
will give to Sellers all notices required by the Option Agreement to effectuate
this assignment. The Option Agreement is in full force and effect.
(f) Litigation. There are no claims, disputes, actions,
proceedings, suits, arbitrations or investigations pending or to Xxxxxx'x
knowledge, threatened, relating to the Option or the Option Agreement.
10. Representations and Warranties of Buyer.
Buyer hereby represents and warrants to Xxxxxx 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, judgement, 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 responsible 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 profession
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 hits 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 Agrement 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: Xxxxxxx Xxxxxxxx
President
Global Broadcasting Systems, Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to: Xxxxxx Xxxxxxx, Esq.
Global Broadcasting Systems, Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
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Xxxxx X. Paper, Esquire
Xxxxxxxxx, Xxxxxxx Xxxxxx & Xxxxxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Xxxxxx: Xxxxxx X. Xxxxxx, Chairman
Xxxxxx Communications of
Cleveland-67, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
With a copy to: Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx, FLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
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) Counterparts. This Agreement may be signed in
counterparts with the same effect as if the signature on each counterpart were
upon the same instrument.
(m) Xxxx-Xxxxx-Xxxxxx. Within ten (10) days after
execution of the Purchase Agreement by Buyer and Sellers, Xxxxxx 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
Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976 ("HSR") with respect to
this Agreement, and, if so, (i) Xxxxxx 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.
XXXXXX COMMUNICATIONS OF
CLEVELAND-67, INC.
By: /s/ XXXXXX X. XXXXXX
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Name:
Title:
GLOBAL BROADCASTING SYSTEMS, INC.
By: /s/ XXXXXXX XXXXXXXX
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Name: Xxxxxxx Xxxxxxxx
Title: President
