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EXHIBIT 10.186
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement") is entered into as of
November 14, 1997, by and between XXXXXX COMMUNICATIONS CORPORATION, a Delaware
corporation ("PCC"), and XXXXX BROADCASTING CORPORATION, a Tennessee corporation
("FBC").
R E C I T A L S
A. FBC owns, licenses or leases all of the assets (the "Assets" as that
term is defined in the Asset Purchase Agreement attached hereto as Exhibit A),
which Assets are used or useful in the business and operations of Television
Station WFBI-TV, Channel 50, Memphis, Tennessee (the "Station"), including,
without limitation, the licenses and construction permits issued by the Federal
Communications Commission ("FCC") for the Station (the "FCC Licenses").
B. PCC and FBC have agreed to enter into a Time Brokerage Agreement (as
defined in Section 7 below), pursuant to which PCC shall provide programming for
broadcast on the Station.
C. FBC desires to grant to PCC an exclusive, irrevocable and assignable
option to purchase the Assets, including the FCC Licenses, and PCC desires to
grant to FBC an exclusive, irrevocable and assignable option to require PCC to
purchase the Assets, including the FCC Licenses, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Grant of Put Option.
(a) For and in consideration of FBC's execution of this Option
Agreement, the sufficiency of which is hereby acknowledged by PCC, PCC hereby
grants to FBC an exclusive and irrevocable option to require PCC to acquire the
Assets, including the FCC Licenses (the "Put Option"), for a purchase price of
Eighteen Million Dollars ($18,000,000), subject to adjustment as provided in,
and payable upon the closing of, the Asset Purchase Agreement (as defined in
Section 3 below). FBC may assign its rights and interests in the Put Option so
long as any such assignment complies with the requirements of Section 20 hereof.
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(b) FBC may deliver to PCC written notice of FBC's intention to
exercise the Put Option (the "Put Notice") at any time following a PCC default
of the Time Brokerage Agreement or at any time during the period commencing on
November 15, 1999 (the "Put Commencement Date") and ending on November 15, 2001
(the "Put Termination Date"). The Put Option shall have no force or effect, and
PCC shall have no obligation with respect thereto, prior to the Put Commencement
Date or after the Put Termination Date. Notwithstanding the requirement in the
preceding sentences, if FBC has not exercised the Put Option on or before the
Put Termination Date, and PCC has not exercised the Call Option on or before the
Call Termination Date (as those terms are defined below), FBC may deliver to PCC
a Put Notice at any time during the 90-day period following expiration of the
Call Option, if the reason for such expiration was a change in any federal law
or any rule, regulation or policy of the FCC or any other governmental agency
that renders, or could reasonably be expected to render, the Time Brokerage
Agreement invalid, illegal or unenforceable; provided, however, that FBC's
delivery of a Put Notice as contemplated by this sentence shall have no effect
if, prior to the end of such 90-day period, PCC has assigned the Time Brokerage
Agreement in accordance with the terms of Section 7.1(a) thereof and, as a
result of such assignment, the Time Brokerage Agreement is legal, valid and
enforceable.
2. Grant of Call Option.
(a) For and in consideration of the option consideration in the
amount of $2,000,000 paid by PCC to FBC (the "Option Payment"), the receipt and
sufficiency of which are hereby acknowledged by FBC, FBC hereby grants to PCC an
exclusive and irrevocable option to acquire the Assets, including the FCC
Licenses (the "Call Option"), for a purchase price of Eighteen Million Dollars
($18,000,000), subject to adjustment as provided in, and payable upon the
closing of, the Asset Purchase Agreement. PCC may assign its rights and
interests in the Call Option so long as any such assignment complies with the
requirements of Section 20 hereof.
(b) PCC may deliver to FBC written notice of PCC's intention to
exercise the Call Option (the "Call Notice") at any time during the period
commencing on November 16, 2001 (the "Call Commencement Date") and ending on
November 16, 2003 (the "Call Termination Date"). The Call Option shall have no
force or effect, and FBC shall have no obligation with respect thereto, prior to
the Call Commencement Date. Notwithstanding the requirement in the preceding
sentences, PCC may deliver to FBC a Call Notice at any time following (i) a
termination of the Time Brokerage Agreement in accordance with its terms for any
reason other than a material breach by PCC of its obligations thereunder or (ii)
a change in any federal law or any rule, regulation or policy of the FCC or any
other governmental agency that renders, or could reasonably be expected to
render, the Time
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Brokerage Agreement invalid, illegal or unenforceable. In the event that PCC
fails to give FBC the Call Notice on or prior to the later of (x) the Call
Termination Date or (y) the date that is ninety (90) days following the
effective date of the change in law, rule, regulation or policy described in
clause (ii) of the preceding sentence, the Call Option shall expire.
(c) Within five (5) business days following demand, FBC shall
immediately return to PCC the Option Payment following (i) a termination by PCC
of this Option Agreement in accordance with the terms of Section 13(b)(i) hereof
as a result of a breach by FBC of any material representation, warranty,
agreement or obligation of FBC contained herein, (ii) the delivery of a Put
Notice or a Call Notice, a termination by PCC of the Asset Purchase Agreement in
accordance with the terms of Section 9.2 thereof as a result of a breach by FBC
of any material representation, warranty, agreement or obligation of FBC
contained in the Asset Purchase Agreement, or (iii) a termination by FBC of this
Agreement pursuant to Section 13(a)(ii) hereof or a termination by PCC of this
Agreement pursuant to Section 13(b)(ii) hereof. Except as provided in this
Section 2(c), FBC shall not be obligated to return the Option Payment to PCC.
3. Asset Purchase Agreement.
(a) Within fifteen (15) business days following PCC's receipt of the
Put Notice or FBC's receipt of the Call Notice, as the case may be, FBC and PCC
shall enter into the Asset Purchase Agreement in the form of Exhibit A hereto
(the "Asset Purchase Agreement"), it being understood that the only change to
such form shall be changes, if any, in the information contained in the
Schedules thereto and the addition, if any, of Schedules thereto that are
reasonably required to reflect events occurring after the date hereof; provided,
however, that PCC shall not be required to accept any such change or addition
that could reasonably be expected to cause a material adverse change in, or have
a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant to
the Asset Purchase Agreement, (ii) the conduct of the business or operations of
the Station or (iii) the ability of FBC to consummate the transactions
contemplated by the Asset Purchase Agreement in accordance with its terms;
provided further, however, that PCC shall be required to accept any change or
addition of the type described in the preceding proviso if such change or
addition results from any action taken (or, if required, not taken) by PCC under
the Time Brokerage Agreement. Upon the execution and delivery of the Asset
Purchase Agreement, FBC and PCC shall perform their respective obligations
thereunder, including, without limitation, filing and prosecuting an appropriate
application for FCC consent to the assignment of the FCC Licenses from FBC to
PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage
Agreement or the Asset Purchase Agreement, PCC shall not assume any obligations
or liabilities of FBC under any contract, agreement, license, permit or other
instrument or arrangement.
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(b) Notwithstanding Section 3(a) of this Option Agreement, in the
event that, at the time of the exercise of the Put Option or the Call Option, as
the case may be, the only assets held by FBC are (i) the assets to be conveyed
to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar
assets to be sold to Buyer pursuant to a certain Option Agreement bearing even
date herewith with respect to Seller's New Orleans Station (as identified in
such Option Agreement, the "New Orleans Option"), FBC may, at its election,
notify PCC in writing that the transactions contemplated by the Asset Purchase
Agreement and the New Orleans Option shall each be reconstituted as a sale to
PCC of all of the capital stock of FBC (the "Stock Purchase Election");
provided, however, that FBC shall have no right to exercise the Stock Purchase
Election if (i) PCC is unable to treat such purchase of stock as a purchase of
assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as
the same may be amended from time to time, and (ii) PCC and FBC are unable to
agree upon the terms and conditions of, and execute and deliver, a Stock
Purchase Agreement within thirty (30) days following PCC's receipt from FBC of
written notice of its election to exercise the Stock Purchase Election. If FBC
exercises the Stock Purchase Election in accordance with the terms of this
Section 3(b), FBC and PCC shall negotiate in good faith the terms of the Stock
Purchase Agreement, it being understood that such Stock Purchase Agreement shall
be substantially equivalent to the Asset Purchase Agreement except for such
modifications and additions thereto that are required to conform the Asset
Purchase Agreement to the form of agreement customarily used in connection with
a sale of capital stock rather than assets, and it being further understood that
neither FBC nor PCC shall be required to accept any term or provision in the
Stock Purchase Agreement that would, or could reasonably be expected to, result
in any increase or decrease in the consideration payable by PCC under the Asset
Purchase Agreement or in the liabilities to be assumed by PCC under the Asset
Purchase Agreement.
4. Survival of Options.
(a) In the event that the exercise of the Put Option is not
consummated for any reason whatsoever, and in the further event that this Option
Agreement is not terminated by FBC or PCC pursuant to Section 13 hereof, the Put
Option shall nevertheless remain exercisable by FBC through the Put Termination
Date, and FBC may at any time, and from time to time, prior to such expiration
again exercise the Put Option as set forth in this Option Agreement and, upon
such exercise, PCC and FBC shall enter into an Asset Purchase Agreement that is
substantially identical to the Asset Purchase Agreement and thereafter
diligently proceed to perform their obligations thereunder.
(b) In the event that the exercise of the Call Option is not
consummated for any reason whatsoever, and in the further event that this Option
Agreement is not terminated by FBC or PCC pursuant to Section 13 hereof, the
Call Option shall nevertheless remain
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exercisable by PCC through the Call Termination Date, and PCC may at any time,
and from time to time, prior to such expiration again exercise the Call Option
as set forth in this Option Agreement and, upon such exercise, FBC and PCC shall
enter into an Asset Purchase Agreement that is substantially identical to the
Asset Purchase Agreement and thereafter diligently proceed to perform their
obligations thereunder.
5. Control of the Station. Prior to the closing of the transactions
contemplated by the Asset Purchase Agreement, PCC shall not, directly or
indirectly, control, supervise, direct, or attempt to control, supervise, or
direct, the operations of the Station; such operations, including complete
control and supervision of all of the Station programs, employees, and policies,
shall be the sole responsibility of FBC until the closing of the transactions
contemplated by the Asset Purchase Agreement.
6. HSR Act. As soon as practicable after the execution hereof but in no
event later than ten business days after the execution hereof, each of PCC and
FBC shall make such filings, if any, required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act") as a result of the
transactions contemplated by this Option Agreement and the Time Brokerage
Agreement. PCC and FBC agree to (a) cooperate with each other in connection with
all such HSR Act filings, which cooperation shall include furnishing the other
with any information or documents that may be reasonably required in connection
with such filings; (b) promptly file, after any request by the Federal Trade
Commission ("FTC") or Department of Justice ("DOJ") and after appropriate
negotiation with the FTC or DOJ of the scope of such request, any information or
documents requested by the FTC or DOJ; and (c) furnish each other with any
correspondence from or to, and notify each other of any other communications
with, the FTC or DOJ that relates to the transactions contemplated hereunder and
under the Time Brokerage Agreement, and to the extent practicable, to permit
each other to participate in any conferences with the FTC or DOJ. The transfer
of the Assets pursuant to the Asset Purchase Agreement and the commencement of
the transaction contemplated by the Time Brokerage Agreement are expressly
conditioned upon the waiting period relating to any such filings the ("HSR
Waiting Period") having duly expired or been terminated by the appropriate
government agencies without the enforcement of any action by any such agencies
to restrain or postpone the transactions contemplated hereby. Any filing fees
required to be paid as a result of the HSR Act shall be paid one-half by PCC and
one-half by FBC.
7. Time Brokerage Agreement. Following the expiration or termination of
the HSR Waiting Period, PCC and FBC shall enter into a Time Brokerage Agreement
with respect to the Station in the form of the Time Brokerage Agreement attached
hereto as Exhibit B (the "Time Brokerage Agreement"). The effective date of the
Time Brokerage Agreement shall be a date mutually acceptable to PCC and FBC that
is no sooner than five
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(5) business days, and no later than ten (10) business days, following the date
of expiration or termination of the HSR Waiting Period. If PCC and FBC fail to
agree on such effective date, the Time Brokerage Agreement shall be duly
executed and delivered by PCC and FBC and shall be effective upon the date that
is ten (10) business days following the expiration or termination of the HSR
Waiting Period. No later than ten (10) business days following the date hereof,
FBC shall notify PCC in writing of the names of those employees of FBC that FBC
elects, in its sole discretion, to retain.
8. Representations and Warranties of FBC. FBC represents and
warrants to PCC as follows:
(a) FBC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Tennessee. FBC has full corporate
power and authority to execute and deliver this Option Agreement, the Asset
Purchase Agreement and the Time Brokerage Agreement and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Option Agreement and the Time Brokerage Agreement and the consummation of the
transactions contemplated hereby and thereby by FBC have been duly and validly
authorized by all necessary corporate action on the part of FBC. This Option
Agreement has been duly and validly executed and delivered by FBC and
constitutes a legal, valid and binding agreement of FBC enforceable against FBC
in accordance with its terms, except as such enforceability may be affected by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by judicial discretion in the enforcement of equitable remedies. The Time
Brokerage Agreement, when executed and delivered by FBC, will be duly and
validly executed and delivered by FBC and will constitute a legal, valid and
binding agreement of FBC enforceable against FBC in accordance with its terms,
except as such enforceability may be affected by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
(b) Except for the FCC Consent and the requirements under the HSR
Act, there is no requirement applicable to FBC to make any filing with, or to
obtain any permit, authorization, consent or approval of, any governmental or
regulatory authority as a condition to the execution and delivery by FBC of this
Option Agreement, the Asset Purchase Agreement or the Time Brokerage Agreement
or the performance by FBC of its obligations thereunder.
(c) Subject to obtaining the FCC Consent, satisfying the
requirements under the HSR Act and obtaining the consents of third parties
identified on Schedule 3.3 to the Asset Purchase Agreement, the execution,
delivery and performance of this Option Agreement, the Asset Purchase Agreement
and the Time Brokerage Agreement by FBC will
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not (i) conflict with FBC's organizational documents or agreements, (ii) result
in a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, agreement, or lease to which FBC is a party or by which any of
the FCC Licenses or the other Assets are bound, or (iii) to FBC's knowledge,
violate any statute, law, rule, regulation, order, writ, injunction or decree
applicable to FBC, the FCC Licenses or the other Assets.
(d) Since January 1, 1997, FBC has conducted the business and
operations of the Station only in the ordinary course and has not:
(i) Suffered any material adverse change in the business,
assets, or properties of the Station;
(ii) except in the ordinary course of business consistent with
past practices, made any material increase in compensation payable or
to become payable to any of the employees of the Station, or made any
bonus payment to any employee of the Station, or made any material
change in personnel policies, employee benefits, or other compensation
arrangements affecting the employees of the Station;
(iii) made any sale, assignment, lease, or other transfer of any
of the Station's properties other than in the normal and usual course
of business with suitable replacements being obtained therefor;
(iv) canceled any claims held by FBC with respect to the
Station, except in the normal and usual course of business;
(v) suffered any material write-down of the value of any
Assets or any material write-off as uncollectible of any accounts
receivable of the Station; or
(vi) Transferred or granted any right under, or entered into
any settlement regarding the breach or infringement of, any material
license, patent, copyright, trademark, trade name, franchise, or
similar right, or modified any existing right specific, to the Station.
(e) The representations and warranties of FBC set forth in Sections
3.4 through and including 3.19 of the Asset Purchase Agreement are incorporated
herein by reference, and FBC hereby makes each such representation and warranty
to PCC as if each such representation and warranty were expressly set forth
herein.
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FBC acknowledges and agrees that FBC's representations and warranties
contained in this Section 8 are a material inducement to PCC's agreement to
enter into and perform this Option Agreement and make the Option Payment.
9. Representations and Warranties of PCC. PCC represents and
warrants to FBC as follows:
(a) PCC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. PCC has full corporate
power and authority to execute and deliver this Option Agreement, the Asset
Purchase Agreement and the Time Brokerage Agreement and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Option Agreement and the Time Brokerage Agreement and the consummation of the
transactions contemplated hereby and thereby by PCC have been duly and validly
authorized by all necessary corporate action on the part of PCC. This Option
Agreement has been duly and validly executed and delivered by PCC and
constitutes a legal, valid and binding agreement of PCC enforceable against PCC
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by judicial discretion in the enforcement of equitable remedies. The Time
Brokerage Agreement, when executed and delivered by PCC, will be duly and
validly executed and delivered by PCC and will constitute a legal, valid and
binding agreement of PCC enforceable against PCC in accordance with its terms,
except as such enforceability may be affected by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
(b) Except for the FCC Consent and the requirements under the HSR
Act, there is no requirement applicable to PCC to make any filing with, or to
obtain any permit, authorization, consent or approval of, any governmental or
regulatory authority as a condition to the execution and delivery by PCC of this
Option Agreement, the Asset Purchase Agreement or the Time Brokerage Agreement
or the performance by PCC of its obligations thereunder.
(c) Subject to obtaining the FCC Consent, satisfying the
requirements under the HSR Act and obtaining the consents of third parties
identified on Schedule 4.5 to the Asset Purchase Agreement, the execution,
delivery and performance of this Option Agreement, the Asset Purchase Agreement
and the Time Brokerage Agreement by PCC will not (i) conflict with PCC's
organizational documents, (ii) result in a default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, agreement, or lease to which PCC is a
party or by
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which any of its assets are bound, or (iii) to PCC's knowledge, violate any
statute, law, rule, regulation, order, writ, injunction or decree applicable to
PCC.
(d) The representations and warranties of PCC set forth in Sections
4.4 through and including 4.7 of the Asset Purchase Agreement are incorporated
herein by reference, and PCC hereby makes each such representation and warranty
to FBC as if each such representation and warranty were expressly set forth
herein.
PCC acknowledges and agrees that PCC's representations and warranties
contained in this Section 9 are a material inducement to FBC's agreement to
enter into and perform this Option Agreement.
10. Covenants of FBC. From the date hereof until termination of this
Option Agreement, FBC will not (i) commit any act that is inconsistent with the
grant of the Call Option to PCC or the transactions contemplated by this Option
Agreement and the Asset Purchase Agreement or (ii) violate any of the covenants,
by any act or failure to act, set forth in Section 5 of the Asset Purchase
Agreement, each of which are incorporated herein by reference and shall be
binding on and enforceable against FBC in accordance with their terms as if each
such covenant were expressly set forth herein.
11. Cooperation. FBC and PCC shall cooperate fully with each other
and their respective counsel and accountants in connection with any steps
required to be taken as part of their respective obligations under this Option
Agreement and the Asset Purchase Agreement and will each use their respective
best efforts to perform or fulfill all conditions and obligations to be
performed or fulfilled by them under this Option Agreement and the Asset
Purchase Agreement so that the transactions contemplated hereby and thereby
shall be consummated.
12. Specific Performance.
(a) The parties recognize that if FBC breaches this Option
Agreement and refuses to perform under the provisions of this Option Agreement,
monetary damages alone would not be adequate to compensate PCC for its injury.
PCC shall therefore be entitled, in addition to any other remedies that may be
available, including money damages, to obtain specific performance of the terms
of this Option Agreement. If any action is brought by PCC to enforce this Option
Agreement, FBC shall waive the defense that there is an adequate remedy at law.
(b) The parties recognize that if PCC breaches this Option Agreement
and refuses to perform under the provisions of this Option Agreement, monetary
damages alone
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would not be adequate to compensate FBC for its injury. FBC shall therefore be
entitled, in addition to any other remedies that may be available, including
money damages, to obtain specific performance of the terms of this Option
Agreement. If any action is brought by FBC to enforce this Option Agreement, PCC
shall waive the defense that there is an adequate remedy at law.
13. Termination.
(a) This Option Agreement may be terminated by FBC and the purchase
and sale of the Assets abandoned, so long as FBC is not in breach of any of its
material representations, warranties, agreements or obligations contained in
this Option Agreement, the Time Brokerage Agreement or the Asset Purchase
Agreement, upon written notice to PCC, (i) if PCC has failed to cure a breach of
any of its material representations, warranties, agreements or obligations
contained in this Option Agreement, the Time Brokerage Agreement (including a
failure to make any payment required under the terms of the Time Brokerage
Agreement), or the Asset Purchase Agreement within 30 days after PCC has
received written notice from FBC of such breach or (ii) if, on or before the
date that is 180 days following the date of this Agreement, the HSR Waiting
Period has not expired or been terminated by the appropriate government agencies
without the enforcement of any action by any such agencies to restrain or
postpone the transactions contemplated hereby.
(b) This Option Agreement may be terminated by PCC and the purchase
and sale of the Assets abandoned, so long as PCC is not in breach of any of its
material representations, warranties, agreements or obligations contained in
this Option Agreement, the Time Brokerage Agreement or the Asset Purchase
Agreement, upon written notice to FBC, (i) if FBC has failed to cure a breach of
any of its material representations, warranties, agreements or obligations
contained in this Option Agreement, the Time Brokerage Agreement or the Asset
Purchase Agreement within 30 days after FBC has received written notice from PCC
of such breach or (ii) if, on or before the date that is 180 days following the
date of this Agreement, the HSR Waiting Period has not expired or been
terminated by the appropriate government agencies without the enforcement of any
action by any such agencies to restrain or postpone the transactions
contemplated hereby.
(c) The notice and cure period set forth in this Section 13 shall be
the only notice and cure period required in connection with any termination of
this Option Agreement by FBC or PCC and shall not be in addition to any notice
and cure rights contained in any other agreement between PCC and FBC.
14. Notices. All notices, demands, and requests required or permitted
to be given under the provisions of this Option Agreement shall be (a) in
writing, (b) delivered by
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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 FBC: Xxxxxx X. Xxxxx, Xx.
Xxxxx Broadcasting Corporation
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
With a copy (which shall not Xxxxxxx X. Xxxxxxx, Esq.
constitute notice) to: Law Offices of Xxxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
If to PCC: Xxxxxx X. Xxxxxx
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
With a copy (which shall not Xxxx X. Xxxxx, Xx., Esq.
constitute notice) to: Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 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 14.
15. Entire Agreement; Amendment. This Option Agreement supersedes all
prior agreements and understandings of the parties, oral and written, with
respect to its subject matter. This Option Agreement may be modified only by an
agreement in writing executed by all of the parties thereto. No waiver of
compliance with any provision of this Option Agreement will be effective unless
evidenced by an instrument evidenced in writing and signed by the parties
thereto.
16. Further Assurances. From time to time after the date of
execution hereof, the parties shall take such further action and execute such
further documents, assurances and
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certificates as either party reasonably may request of the other to effectuate
the purposes of this Option Agreement.
17. Counterparts. This Option Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and shall become
effective when each of the parties hereto shall have delivered to it this Option
Agreement duly executed by the other parties hereto.
18. Headings. The headings in this Option Agreement are for the sole
purpose of convenience of reference and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Option
Agreement.
19. Governing Law; Disputes. This Option Agreement shall be construed
under and in accordance with the laws of the State of Florida, without giving
effect to the principles of conflicts of law. Except as otherwise provided to
the contrary below, any dispute arising out of or related to this Option
Agreement that FBC and PCC are unable to resolve by themselves shall be settled
by arbitration by a panel of three (3) neutral arbitrators 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 FBC and PCC. The costs and expenses of the arbitration
proceeding shall be assessed between FBC and PCC in a manner to be decided by a
majority of the arbitrators, 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 Option Agreement shall be instituted in any court by FBC or
PCC against the other except (i) an action to compel arbitration pursuant to
this Section, (ii) an action to enforce the award of the arbitration panel
rendered in accordance with this Section, or (iii) a suit for specific
performance pursuant to Section 12 of this Option Agreement.
20. Benefit and Binding Effect; Assignability. This Option Agreement
shall inure to the benefit of and be binding upon FBC, PCC and their respective
successors and permitted assigns. Neither PCC nor FBC may assign this Option
Agreement without the
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prior written consent of the other, except that (a) PCC may assign its rights
and obligations under this Option Agreement without FBC's consent to (i) any
entity controlled by or under common control with PCC or (ii) any other entity
designated by PCC, so long as PCC determines, in the exercise of reasonable
business judgment, that such entity possesses the financial capacity, and the
requisite qualifications under the Communications Act of 1934, as amended, and
the rules and regulations promulgated thereunder, to consummate the transactions
contemplated by this Option Agreement and the Asset Purchase Agreement and (b)
FBC may assign its rights and obligations under this Option Agreement without
PCC's consent to any entity controlled by or under common control with FBC;
provided, however, in the case of any assignment permitted under clause (a) or
(b) above, as a condition precedent to the effectiveness of any such assignment,
PCC or FBC, as the case may be, shall, concurrent with such assignment, enter
into an agreement with the other pursuant to which PCC or FBC shall guarantee
the performance of all obligations assumed by such party's assignee. Upon any
permitted assignment by a party in accordance with this Section 20, all
references to "PCC" herein shall be deemed to be references to PCC's assignee
and all references to "FBC" herein shall be deemed to be references to FBC's
assignee, as the case may be. Notwithstanding the foregoing, either PCC or FBC
may assign its rights, benefits, duties or obligations hereunder to its lenders
as collateral security for its obligations to such lenders.
21. Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Option Agreement, and except as and to the
extent required by law, each party will keep confidential any information
obtained from the other party in connection with the transactions contemplated
by this Option Agreement. If this Option Agreement is terminated, each party
will return to the other party all information obtained by the such party from
the other party in connection with the transactions contemplated by this Option
Agreement.
22. Press Release. Neither party shall publish any press release, make
any other public announcement or otherwise communicate with any news media
concerning this Option Agreement or the transactions contemplated hereby without
the prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that nothing contained
herein shall prevent either party from (a) making such public announcements as
may be required under federal or state securities laws or (b) 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 Option
Agreement or the consummation of the transactions contemplated hereby.
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23. Attorneys' Fees. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Option Agreement, the prevailing party shall be entitled to reimbursement from
the other party of its reasonable legal fees and expenses.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties hereto have executed this Option
Agreement as of the date first above written.
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
XXXXX BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President
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