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EXHIBIT 10.29
OPTION AGREEMENT
THIS OPTION AGREEMENT ("this Agreement") is dated as of the
6th day of October 1995 by and between All American Communications, Inc., a
Delaware corporation (the "Optionee") on the one hand and The Interpublic Group
of Companies, Inc. ("Interpublic") and its wholly-owned subsidiary, Infoplan
International, Inc. on the other hand (collectively, "Optionors").
W I T N E S S E T H:
A. WHEREAS, Optionors, Optionee and All American
Xxxxxxx, Inc., a Delaware corporation, are parties to an Amended and Restated
Limited Liability Company Operating Agreement of Xxxx Xxxxxxx Productions, LLC
(the "Company") dated as of October 6, 1995 (the "Amended Operating Agreement")
(capitalized terms used herein without definition shall have the respective
meanings set forth in the Amended Operating Agreement);
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B. WHEREAS, Optionors will own in the aggregate a 50%
Interest in the Company as of the effective date of the Amended Operating
Agreement;
C. WHEREAS, Optionors desire to grant Optionee an option
to acquire Optionors' Interests in the Company on the terms set forth herein;
NOW THEREFORE, in consideration of the premises, the mutual
promises herein contained and, other good and valuable consideration had and
received, the parties hereto mutually agree as follows:
Section 1. The Option.
1.1 Upon and subject to the terms, conditions and other
provisions hereinafter set forth, Optionors hereby grant to Optionee an
irrevocable option (the "Option") to purchase the Interests of Optionors in the
Company at any time during the Option Period (as hereinafter defined) for a
purchase price of $25.875 million, subject to adjustment as set forth in
Section 1.2 hereof (the "Purchase Price"). The Option Period shall be the
period commencing on April 30, 1996 and ending at 5:00 P.M.,
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Los Angeles, California time, on October 31, 1996. The Option may be
exercised at any time during the Option Period for all, but not less than all,
of the Optionors' Interests.
1.2 To the extent the Option is exercised during the
Option Period on any date following April 30, 1996, the Purchase Price shall be
increased by a notional amount of $4,794.53 for each date during the Option
Period on which the Option is not exercised up to the Closing Date (as defined
below).
1.3 The Option may be exercised by the Optionee by
delivery to Optionors of an irrevocable notice in writing which shall (i) state
that the Optionee thereby is exercising the Option, and (ii) set forth and
designate a closing date (the "Closing Date"), which shall not be later than
the tenth (10th) business day after such notice is delivered to the Optionors.
Optionee's obligation to purchase the Interests upon any exercise of the Option
shall be subject to (i) the truth and correctness in all material respects of
Optionors' representations and warranties contained in this Agreement on and as
of the Closing Date, (ii) the compliance by Optionors in all material respects
with each covenant and agreement contained in this Agreement
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required to be performed by Optionors on or prior to the Closing, (iii) the
expiration of the applicable waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended ("HSR Act"), if any,
with respect to the transaction and (iv) no injunction or restraining
order prohibiting the purchase of the Interests being in effect. Upon request
of Optionee, Optionors shall promptly take all action required to effect all
necessary filings under the HSR Act. Optionor's obligation to sell its
Interests shall be subject to the receipt of a release from the other parties
to the Intercreditor Agreement acknowledging the termination of such agreement
and releasing the Optionors from any liability thereunder.
1.4 Unless the parties hereto agree in writing to a
different time, place and/or date, the Closing shall take place at the
principal offices of Optionee on the Closing Date, which shall be the date
specified in the notice referred to in Section 1.3.
1.5 At the Closing:
1.5.1 The Optionors shall execute and deliver to the
Optionee such bills of sale, assignments, duly executed
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powers, and other instruments as shall be effective to vest in
such Optionee good, legal and valid title to the Interests free and
clear of all liens, charges, encumbrances and/or equities of any kind
whatsoever (other than liens, charges, encumbrances and/or equities
created solely by actions of Optionee) and shall cause all of their
respective designees to the Board of Directors (or equivalent body) of
All American Television II, Inc., All American Fremantle International
II, Inc. and the Company to resign immediately.
1.5.2 The Optionee shall deliver to Optionors, by wire
transfer of immediately available funds to an account designated
by Optionors two Business Days before the Closing Date, the
Purchase Price to be paid at the Closing by the Optionee.
1.5.3 Upon consummation of the Closing, Optionors shall
cease to be Members of the Company and Optionee shall succeed
to Optionors' membership Interests in the Company and all of their
rights and obligations under the Amended Operating Agreement and,
except as set forth herein, the related letter dated as of October 6,
1995 between the parties (the "Side
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Letter") shall terminate. Upon the consummation of the Closing,
neither Optionors nor Optionee shall have any rights, benefits,
privileges, liabilities, responsibilities or obligations under
the Side Letter (including, without limitation, with respect to
payments of Service Fees (as defined in the Side Letter) accrued after
the Closing), provided that, the provisions of (i) Section 5 of the
Side letter shall survive with respect to claims brought prior to the
Closing Date, (ii) Section 6 of the Side Letter shall survive with
respect to Service Fees accrued on or prior to the Closing Date and
(iii) Section 8 and the second sentence of Section 14 shall survive in
perpetuity. At such time, the Guarantor Obligations referred to under
the Intercreditor Agreement dated as of October 6, 1995 among the
parties and Chemical Bank as agent shall be deemed to have been
discharged in full, and the Guaranties and Security and Pledge
Agreements contemplated thereby shall be terminated. Notwithstanding
anything to the contrary herein, Interpublic Game Shows, Inc. shall
continue to have its rights and obligations under, and in accordance
with the terms of, the Network License Agreement and the Network
Production Agreement. Each party hereto shall, and shall cause their
respective Affiliates to, take such actions as are reasonably
requested by the other party to effectuate the
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intent of this Agreement, including entering into an appropriate
amendments to the Amended Operating Agreement, the Intercreditor
Agreement and the documents contemplated thereby.
Section 2. Restriction on Transfer
2.1 The Optionee represents and agrees that the Interests
deliverable to it upon exercise of the Option are being and will be acquired by
it for its own account for investment and without a view to distribution
thereof, except in accordance with law.
2.2 The Optionee represents and agrees that the Option to
which it is entitled pursuant to this Agreement is being acquired by it for its
own account for investment and without a view to distribution thereof, except
in accordance with law.
2.3 The Optionee understands and agrees: (i) that in
reliance upon its representation, the sale of Interests deliverable to it
pursuant to this Agreement may not be registered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, or the Rules
and Regulations thereunder (such Act and Rules and Regulations being herein
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collectively called the "Act") and may be delivered to it in reliance upon an
exemption from such registration; (ii) that the Optionee must hold the
Interests so received indefinitely unless such Interests are subsequently
registered under the Act or an exemption from such registration is available
with respect to such Interests.
Section 3. Certain Representations, Warranties and
Covenants.
(A) Optionee represents and warrants to Optionors that (a)
Optionee is a corporation duly incorporated and in good standing under the laws
of the State of Delaware and has the requisite corporate power to enter into
and perform this Agreement; (b) this Agreement has been duly authorized by all
necessary corporate action on the part of Optionee and constitutes a legal,
valid and binding obligation of Optionee, enforceable in accordance with its
terms; (c) Optionee is not subject to or obligated under any provision of (i)
its Restated Certificate of Incorporation or By-Laws, (ii) any contract (other
than any necessary consent under Optionee's credit facility with Chemical Bank,
as agent for the lenders named therein which shall be obtained at or prior to
the Closing), (iii) any license,
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franchise or permit, or (iv) any order, judgment or decree, which would be
breached or violated by its execution, delivery and performance of this
Agreement and the consummation by it of the transactions contemplated hereby;
and (d) other than in connection with or in compliance with the provisions of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the HSR
Act (if any) and the securities or blue sky laws of the various states, no
authorization, consent or approval of, or filing with, any public body, court
or authority is necessary on the part of Optionee for the consummation by
Optionee of the transactions contemplated by this Agreement.
(B) Optionors represent and warrant to Optionee that (i) each Optionor
is a corporation duly incorporated and in good standing under the laws of its
state of incorporation; (ii) Optionors have full power and authority to enter
into and perform this Agreement; (iii) this Agreement has been duly executed by
Optionors and constitutes a legal, valid and binding obligation of Optionors,
enforceable in accordance with its terms; (iv) Optionors are not subject to or
obligated under any provision of (A) their respective certificates of
incorporation or by-laws, (B) any contract (other than the Intercreditor
Agreement), (C) any license, franchise or permit, or (D) any order, judgment
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or decree which would be breached or violated by its execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby; (v) other than in connection with or in compliance with
the provisions of the Exchange Act, the HSR Act (if any), and the securities or
blue sky laws of the various states, no authorization, consent or approval of,
or any filing with, any public body or authority is necessary for consummation
by Optionors of the transactions contemplated by this Agreement; (vi) the
Interests are not subject to any lien, encumbrance, security interest, charge,
option or warrant other than pursuant to this Agreement; (vii) when delivered
by Optionors to Optionee upon exercise of the Option, good, legal and valid
title in and to the Optionors' Interests will be vested in Optionee, free and
clear of any claims, liens, encumbrances, security interests and charges of any
nature whatsoever (other than any such claims, liens, encumbrances, security
interests and charges created solely by actions of Optionee); and (viii) the
Interests constitute all of the membership or equity interests over which
Optionors possess beneficial ownership or dispositive or voting power.
(C) Optionors and Optionee agree that the transactions subject to
this Agreement are not subject to the provisions on
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"Transfers" set forth in Article VI of the Amended Operating Agreement and, to
the extent necessary, this Agreement shall be deemed an amendment to the
Amended Operating Agreement.
Section 4. Notices
Any notice, waiver, demand or other communication required or
permitted by this Agreement must be in writing and shall be deemed to have been
given and received (i) if delivered by messenger: when delivered, or (ii) if
mailed: on the third (3) business day after deposit in the United States mail,
certified or registered postage prepaid, return receipt requested, or (iii) if
telecopied: twenty-four hours after being dispatched by telecopy, but if such
dispatch occurs after the normal business hours of the recipient, then at the
next opening of business of the recipient, and in every case addressed to the
party to be notified at the address or addresses set forth in the Amended
Operating Agreement, or at such other address as the party to be notified from
time to time may notify the other parties mentioned above.
Section 5. Miscellaneous.
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5.1 If any action is brought to enforce or interpret any
part of this Agreement or any other agreement or instrument provided for herein
or the rights or obligations of any party to this Agreement or such other
agreement or instrument, the prevailing party in such action shall be entitled
to recover as an element of such party's costs of suit, and not as damages, a
reasonable attorney's fee to be fixed by the court. The prevailing party shall
be the party who is entitled to recover its costs or attorney's fees.
5.2 The laws of the State of New York shall govern the
interpretation and effect of this Agreement. Each of the parties hereto
irrevocably waives any objection it may now or hereafter have to the laying of
venue in any such courts and any claim that any action or proceeding brought in
any such courts has been brought in an inconvenient forum.
5.3 The parties agree that the Interests are unique and
irreplaceable; that each of the provisions of this Agreement is necessary to
assure that Optionee will have the full benefit of the Interests as
contemplated hereby; and that any failure of Optionors to deliver the Interests
to Optionee in accordance with
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this Agreement or to perform Optionors' covenants and agreements herein
contained would not be compensable by the award of money damages alone.
Accordingly, the parties agree that this Agreement is specifically enforceable
by Optionee and Optionors shall not assert or allege otherwise.
5.4 This Agreement and the Option are not assignable by
Optionee without the consent of Optionors and shall be binding upon and inure
to the benefit of the respective successors and permitted assigns of Optionee.
5.5 This Agreement (together with the Amended Operating
Agreement and the documents contemplated thereby) embodies the entire
understanding between the parties hereto with respect to the subject matter
hereof and thereof, supersedes and merges all prior discussions or
communications between them as to the matters covered herein and therein, and
neither the Optionors nor Optionee shall be bound by any conditions, warranties
or representations with respect to the subject matter hereof other than
expressly stated in this Agreement (including Section 1.5.3 hereof) or set
forth in a writing signed by the Optionors and Optionee. This Agreement may be
amended, modified or
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supplemented only by written instrument signed by the Optionors and the
Optionee. This Agreement may be executed in two or more counterparts,
which shall, in the aggregate, be signed by all parties hereto. Each
counterpart shall be deemed an original instrument as against any party who has
signed it.
5.6 Each party hereto shall cooperate with each other
party and shall take such further action and shall execute and deliver such
further documents as may be necessary or desirable in order to carry out the
provisions and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first above written.
OPTIONORS: OPTIONEE:
THE INTERPUBLIC GROUP OF ALL AMERICAN COMMUNICATIONS,
COMPANIES, INC. INC.
By:_________________________ By:____________________________
Name: Name:
Title: Title:
INFOPLAN INTERNATIONAL, INC.
By:________________________
Name:
Title:
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