Exhibit 10.16
OPTION AGREEMENT
THIS OPTION
AGREEMENT (this “ Agreement ”) is made and entered
into as of August 31, 2007, by and among Barrington Traverse
City LLC , a Delaware limited liability company (together with
its successors and permitted assigns, “ Option Holder ”), Tucker
Broadcasting of Traverse City, Inc. , a Delaware corporation
(together with its successors and permitted assigns, the “
Company ”), and
Tucker Media and Management Consulting L.L.C. , a Delaware
limited liability company (together with its successors and
permitted assigns, “ Grantor ”).
WITNESSETH
WHEREAS , Option
Holder is a party to that certain Asset Purchase Agreement (the
“ Station Purchase
Agreement ”), dated as of the date hereof, by and
among Max Media of Traverse City LLC, MTC License LLC
(collectively, “ Sellers ”) and Option Holder,
pursuant to which Option Holder has agreed to purchase certain
assets of the Sellers related to the television broadcast stations
WGTU, channel 29, Traverse City, Michigan (“ WGTU ”) and WGTQ, channel 8,
Sault Ste. Marie, Michigan (“ WGTQ ” and together with WGTU,
the “ Stations
”) each serving the Traverse City/Cadillac, Michigan
market;
WHEREAS , Grantor
owns 100% of the issued and outstanding common stock, par value
$0.01 per share (the “ Common
Stock ”), of the Company;
WHEREAS , Option
Holder and the Company are parties to that certain Assignment and
Assumption Agreement (the “ Assignment Agreement ”), dated as
of the date hereof, pursuant to which Option Holder has assigned
certain of its rights under the Station Purchase Agreement to the
Company, including the right to purchase the Purchased Assets (as
such term is defined in the Station Purchase Agreement);
WHEREAS, effective
upon the closing of the transactions contemplated by the Station
Purchase Agreement (the “ Station Closing ”), Grantor and
the Company desire to grant Option Holder an option to purchase, at
Option Holder’s election, (i) all of the Common Stock of the
Company or (ii) all of the Company’s assets relating to the
Stations, including the Purchased Assets, in either case on the
terms and conditions set forth herein; and
WHEREAS, Option
Holder desires to acquire from Grantor and the Company an option to
purchase, at Option Holder’s election, (i) all of the Common
Stock of the Company or (ii) all of the Company’s assets
relating to the Stations, including the Purchased Assets, in either
case on the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements hereinafter
set forth, the parties, intending to be legally bound, agree as
follows:
1.
Option Grant . Grantor hereby gives, grants, transfers and
conveys to Option Holder, and its successors and assigns, the sole
and exclusive right, privilege and option to purchase (the “
Option ”), on the
terms and conditions hereinafter set forth and effective as of the
Station Closing, at Option Holder’s election, (i) all of the
Common Stock of the Company now held or hereinafter acquired by
Grantor (collectively, the “ Subject Shares ”), or (ii) all of
the tangible and intangible personal property, licenses,
authorizations and leases, contracts and
agreements, owned or
held by Grantor or the Company or in which Grantor or the Company
holds an interest, relating to the operation of the Stations,
including the property described below (and collectively referred
to as the “ Assets
”):
(a)
All of the Purchased Assets;
(b)
All of the licenses, construction permits and other authorizations
issued by the FCC for the operation of the Stations, including any
renewals, extensions or modifications thereof and additions thereto
between the date hereof and the Option Closing (collectively, the
“ FCC Licenses
”);
(c)
All other licenses, permits, construction permits, approvals,
concessions, franchises, certificates, consents, qualifications,
registrations, privileges and other authorizations and other
rights, from any governmental authority to Grantor or the Company
used in connection with the Stations, including any renewals,
extensions or modifications thereof and additions thereto between
the Station Closing and the Option Closing (collectively, the
“ Permits
”);
(d)
All of the tangible personal property owned by Grantor or the
Company as of the Station Closing or thereafter acquired by Grantor
or the Company and used or useful in the operation of the
Stations;
(e)
All of the intangible personal property owned by Grantor or the
Company relating to or used in connection with the operation of the
Stations as of the Station Closing or thereafter acquired by
Grantor or the Company and used or useful in the operation of the
Stations, exclusive of all cash on-hand of Grantor or the Company
and any payments due to the Company under the JSA;
(f)
Grantor’s and the Company’s rights and duties under the
Station Purchase Agreement; and
(g)
All of the contracts, leases and other agreements relating to the
ownership and operation of the Stations.
2.
Consideration for Option . This Option is granted for the
Option Period (as the same may be extended pursuant to Section 3
hereof) in return for, among other consideration, the payment by
Option Holder to Grantor of an amount equal to Five Thousand Five
Hundred Dollars ($5,500.00), which shall be due and payable on the
date of the Station Closing.
3.
Option Period . The Option shall be effective commencing on
the date hereof (the “ Effective Date ”) and ending on
the eighth anniversary of the Effective Date (the “
Option Period ”);
provided , however , that the Option Period shall be
extended automatically without any further action by Option Holder,
Grantor or the Company if the Joint Sales Agreement (as the same
may be amended from time to time, the “ JSA ”), dated as of the date
hereof, by and between Option Holder and the Company, shall be
renewed and, thereafter, the Option Period shall continue until the
JSA is terminated in accordance with its terms. The Option may be
exercised by Option Holder at any time during the Option
Period.
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4.
Exercise of Option; Withdrawal .
(a)
Option Holder may exercise the Option at any time during the Option
Period by delivery of written notice thereof (the “
Exercise Notice ”) to
Grantor, specifying whether Option Holder is exercising the Option
with respect to the Subject Shares or the Assets. Upon exercise of
the Option, Option Holder, Grantor and the Company shall be
obligated to enter into the transactions to be consummated
hereunder at the Option Closing, subject to the provisions of
Sections 9 and 10 hereof, and Section 4(b) below.
(b)
Option Holder may withdraw any Exercise Notice prior to the Option
Closing by written notice to Grantor of such withdrawal. No such
withdrawal (and no withdrawal of any subsequent Exercise Notice)
will affect Option Holder’s right subsequently to exercise
the Option by delivering to Grantor during the Option Period one or
more other Exercise Notices.
5.
Purchase of Subject Shares or Assets .
(a)
Purchase Price . At the Option Closing, and pursuant to the
terms and subject to the conditions set forth in this Agreement,
Option Holder shall pay to Grantor an amount equal to the Cash
Purchase Price by federal wire transfer of same-day funds pursuant
to wire instructions delivered to Option Holder by Grantor at least
two business days prior to the Closing Date (or such other method
of funds transfer as may be agreed upon by Option Holder and
Grantor). The “ Cash Purchase
Price ” shall be (i) in the event Option Holder
exercises the Option with respect to the Assets, an amount equal to
the sum of (x) the Base Value (as defined in Schedule 5(a)
hereto) and (y) the Escalation Amount (as defined and calculated
pursuant to Schedule 5(a) hereto), or (ii) in the event
Option Holder exercises the Option with respect to the Subject
Shares, an amount equal to (A) the sum of (x) the Base Value and
(y) the Escalation Amount less (B) Outstanding Debt (as defined in
Schedule 5(a) hereto).
(b)
Purchase of Subject Shares . Subject to Section 4(b), upon
the exercise of the Option with respect to the Subject Shares,
Grantor shall, on the Closing Date, deliver any and all stock
certificates representing the Subject Shares, duly endorsed for
transfer to Option Holder, together with appropriate stock powers
duly endorsed for transfer to Option Holder.
(c)
Purchase of Assets .
(i)
Transfer of Assets . Subject to Section 4(b), upon the
exercise of the Option with respect to the Assets, Grantor and the
Company shall, on the Closing Date, sell, assign, transfer, convey
and deliver to Option Holder all right, title and interest of
Grantor and the Company in and to the Assets free and clear of
liens, claims and encumbrances (“ Liens ”), except for Assumed
Obligations, liens for taxes not yet due and payable and any other
liens expressly identified and agreed to by the parties in writing
(collectively, “ Permitted
Liens ”).
(ii)
Excluded Assets . Except for those assets specifically
identified in Section 1, the Assets shall not include any other
assets, properties, interests or rights of any kind or description
(the “ Excluded
Assets ”). The Excluded Assets shall remain the
property of Grantor or the Company, as the case may be.
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(iii)
Assumption of Obligations . On the Closing Date, Option
Holder shall assume and undertake to pay, discharge and perform all
obligations of Grantor or the Company, as the case may be, as the
holder of the Permits and the FCC Licenses, including all
obligations to make all required FCC filings with respect thereto,
and as the owner of the other Assets, including all leases and
contracts included in such Assets, to the extent such obligations
arise out of events occurring on or after the Closing Date (the
“ Assumed Obligations
”).
(iv)
Excluded Obligations. Option Holder does not assume or agree
to discharge or perform, and will not be deemed by reason of the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, to have assumed or to have agreed
to discharge or perform, and Grantor and the Company shall remain
liable for, any liabilities, obligations or commitments of Grantor
and the Company arising from the business or operation of the
Stations before the Closing Date and any other obligations or
liabilities other than the Assumed Obligations.
(v)
Allocation . Option Holder, Grantor and the Company will
allocate the Cash Purchase Price in accordance with the respective
fair market values of the Assets and the goodwill being purchased
and sold in accordance with the requirements of Section 1060 of the
Internal Revenue Code of 1986, as amended. The allocation shall be
determined by mutual agreement of the parties. Option Holder,
Grantor and the Company agree to file their federal income tax
returns and their other tax returns reflecting such allocation and
to use such allocation for accounting and financial reporting
purposes.
(d)
Closing . Upon the exercise of the Option, the consummation
of the sale and purchase of the Subject Shares or the Assets, as
the case may be, provided for in this Agreement (the “
Option Closing ”)
shall take place no later than ten business days after the
satisfaction or, to the extent permissible by law, the waiver (by
the party for whose benefit the closing condition is imposed) of,
the conditions specified in Sections 9 and 10 hereof.
Alternatively, the Option Closing may take place at such other
place, time or date as the parties may mutually agree upon in
writing. The date on which the Option Closing is to occur is
referred to herein as the “ Closing Date .”
6.
Representations and Warranties of Grantor and the Company .
Grantor and the Company, jointly and severally, represent and
warrant to Option Holder as follows; provided ,
however , that neither Grantor nor the Company make any
representation or warranty as to any action, event, occurrence or
circumstance that ( i ) was or shall be caused by Option
Holder or that arose, or shall arise from any omission by Option
Holder to perform its obligations under the JSA or the Shared
Services Agreement (the “ SSA ”), dated as of the date
hereof, by and between the Company and Option Holder, or (
ii ) constitutes a breach by Sellers of a representation or
warranty of Sellers under the Station Purchase Agreement:
(a)
The Company was organized as a Delaware corporation on August 21,
2007. Prior to the date hereof, the Company has not engaged in any
business and does not have any liabilities or obligations, except
those liabilities and obligations incurred in connection with
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its
organization, the negotiation, execution, delivery and performance
of this Agreement, the Station Purchase Agreement, the Assignment
Agreement, the Letter Agreement (as hereinafter defined), the JSA
and the SSA and the transactions contemplated hereby and thereby
and incidental expenses incurred in connection therewith. The
Company has no indebtedness for borrowed money, other than
indebtedness incurred in connection with the performance of the
Company’s obligations pursuant to the Station Purchase
Agreement pursuant to a credit agreement or other financing
arrangement contemplated by that certain Commitment Letter, dated
as of August 31, 2007, from Banc of America Securities LLC,
Wachovia Bank, National Association, Wachovia Capital Markets, LLC
and CIT Lending Services Corporation in favor of Tucker
Broadcasting of Traverse City, Inc., or any other financing
arrangement provided by, or entered into with, Pilot Group L.P. or
an Affiliate thereof (an “ Acquisition Financing Arrangement
”).
(b)
Each of Grantor and the Company has the power and authority and
full legal capacity to enter into and to perform its obligations
under this Agreement. The execution, delivery and performance of
this Agreement by each of Grantor and the Company has been duly
authorized and this Agreement constitutes a valid and binding
obligation of each of Grantor and the Company enforceable against
each of them in accordance with it terms, except as may be limited
by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors’ rights in general and subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(c)
As of the Option Closing, Grantor owns 100% of the Subject Shares
and Grantor has good and valid title to the Subject Shares free and
clear of all liens. All of the Subject Shares have been duly
authorized and are validly issued, fully paid and nonassessable.
Other than the Subject Shares or pursuant to an Acquisition
Financing Transaction, no class of interests in or equity interests
of the Company is outstanding, and there are no outstanding
subscriptions, warrants, options, calls, commitments or other
rights to purchase or acquire, or securities convertible into or
exchangeable for, any equity or debt interests of the Company or
any obligation of the Company to issue or grant any thereof.
(d)
As of the Option Closing, the Company has good and marketable title
to the Assets free and clear of all liens other than liens for
taxes not yet due and payable and liens that will be discharged at
or prior to the Option Closing.
(e)
As of the Closing Date, the Company is the holder of the FCC
Licenses and such FCC Licenses are valid and in full force and
effect.
(f)
As of the Closing Date, Grantor and the Company shall have filed
all material returns, reports, and statements that Grantor or the
Company, as the case may be, is required to file with the FCC and
the Federal Aviation Administration. Except as set forth on
Schedule 6(f) hereto, ( i ) there is no action, suit
or proceeding pending or, to Grantor’s knowledge, threatened
in writing against Grantor or the Company in respect of the
Stations seeking to enjoin the transactions contemplated by this
Agreement; and ( ii ) to Grantor’s knowledge, there
are no governmental claims or investigations pending or threatened
against Grantor or the Company in respect of the Stations (except
those affecting the broadcasting industry generally).
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(g)
No broker, finder or other person is entitled to a commission,
brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of
any agreement or action of Grantor or the Company or any other
party acting on Grantor’s or the Company’s behalf.
The parties
agree that Schedule 6(f) hereto may be updated by Grantor as
of the Closing Date.
7.
Representations and Warranties of Option Holder . Option
Holder represents and warrants to Grantor and the Company as
follows:
(a)
Option Holder is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of
Delaware.
(b)
Option Holder has the power and authority to enter into and perform
its obligations under this Agreement.
(c)
The execution, delivery and performance of this Agreement by Option
Holder has been duly authorized and this Agreement constitutes a
valid and binding obligation of Option Holder enforceable against
it in accordance with its terms, except as may be limited by
bankruptcy, insolvency or other similar laws affecting
creditors’ rights in general and subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(d)
No broker, finder or other person is entitled to a commission,
brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of
any agreement or action of Option Holder or any party acting on
Option Holder’s behalf.
8.
Covenants of Grantor and the Company During the
Option Period, and subject to the JSA and SSA, and the performance
by Option Holder of its obligations thereunder, Grantor and the
Company, jointly and severally, covenant to:
(a)
Maintain insurance on the Assets and with respect to the operation
of the Stations in such amounts and in such nature as in effect on
the date hereof;
(b)
Operate the Stations in all material respects in accordance with
the terms of the FCC Licenses, the Communications Act of 1934, as
amended (the “ Communications
Act ”), the rules and published policies of the FCC
(“ FCC Rules ”)
and all other statutes, ordinances, rules and regulations of
governmental authorities;
(c)
Refrain from taking any action that would cause the FCC Licenses
not to be in full force and effect or to be revoked, suspended,
cancelled, rescinded, terminated or expired;
(d)
File all material returns, reports, and statements that Grantor or
the Company, as the case may be, is required to file with the FCC
and the Federal Aviation Administration;
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(e)
Other than pursuant to an Acquisition Financing Arrangement, not
mortgage, pledge, subject to any lien or otherwise encumber (or
cause any of the foregoing to occur) any of the Assets or Subject
Shares or any other outstanding equity interests or assets of
Grantor or the Company;
(f)
Not sell, lease or otherwise dispose of any of the Assets in a
manner that is inconsistent with this Agreement, except for
properties and assets sold or replaced with others of like kind and
value in the ordinary course of business; and
(g)
Not issue any subscription, warrant, option, calls, commitments or
other rights to purchase or acquire any equity or debt interests,
or any securities convertible into or exchangeable for any equity
or debt interests, of Grantor or the Company (other than pursuant
to an Acquisition Financing Arrangement).
Notwithstanding anything to the contrary
contained herein, to the extent that the obligations of Grantor or
the Company hereunder would require the incurrence of an Other
Expense as defined in the JSA, such obligation or covenant shall be
subject to the terms and conditions of the JSA.
9.
Grantor and the Company Closing Conditions.
Subject to the
exercise of the Option pursuant to the terms and subject to the
conditions of this Agreement, the obligations of Grantor and the
Company hereunder are subject to satisfaction or waiver, at or
prior to the Option Closing, of each of the following
conditions:
(a)
Representations, Warranties and Covenants . The
representations and warranties of Option Holder made in this
Agreement shall be true and correct in all material respects at and
as of the Closing Date except for changes permitted or contemplated
by the terms of this Agreement, and the covenants and agreements to
be complied with and performed by Option Holder at or prior to the
Option Closing shall have been complied with or performed in all
material respects. Grantor shall have received a certificate dated
as of the Closing Date from Option Holder, executed by an
authorized officer of Option Holder, to the effect that the
conditions set forth in this Section 9(a) have been satisfied.
(b)
FCC Consent . The FCC Consent shall have been obtained and
be in effect and no court or governmental order prohibiting the
Option Closing shall be in effect.
(c)
No Prohibitions . No injunction, restraining order or decree
of any nature of any governmental authority of competent
jurisdiction shall be in effect that restrains or prohibits any
party from consummating the transactions contemplated by this
Agreement.
10.
Option Holder Closing Conditions.
Subject to the
exercise of the Option pursuant the terms and subject to the
conditions of this Agreement, the obligations of Option Holder
hereunder are subject to satisfaction or waiver, at or prior to the
Option Closing, of each of the following conditions:
(a)
Representations, Warranties and Covenants . The
representations and warranties of Grantor and the Company made in
this Agreement shall be true and correct in all
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material
respects at and as of the Closing Date except for changes permitted
or contemplated by the terms of this Agreement, and the covenants
and agreements to be complied with and performed by Grantor and the
Company at or prior to the Option Closing shall have been complied
with or performed in all material respects. Option Holder shall
have received certificates dated as of the Closing Date from each
of the Company and Grantor, executed by an authorized officer of
each of the Company and Grantor to the effect that the conditions
set forth in this Section 10(a) have been satisfied.
(b)
FCC Consent . The FCC Consent shall have been obtained and
constitute a Final Order, and no court or governmental order
prohibiting the Option Closing shall be in effect. For purposes
hereof, “ Final Order
” shall mean an action by the FCC or other regulatory
authority having jurisdiction ( i ) with respect to which
action no timely request for stay, motion or petition for
reconsideration or rehearing, application or request for review or
notice of appeal or other judicial petition for review is pending
and ( ii ) as to which the time for filing any such request,
motion, petition, application, appeal or notice and for entry of
orders staying, reconsidering or reviewing on the FCC’s or
such other regulatory authority’s own motion has
expired.
(c)
No Prohibitions . No injunction, restraining order or decree
of any nature of any governmental authority of competent
jurisdiction shall be in effect that restrains or prohibits any
party from consummating the transactions contemplated by this
Agreement.
11.
Closing Deliveries.
(a)
Purchase of Subject Shares .
(i)
Grantor Documents . Subject to the exercise of the Option
with respect to the Subject Shares pursuant to the terms and
subject to the conditions of this Agreement, at the Option Closing
Grantor shall deliver or cause to be delivered to Option
Holder:
(A)
certified copies of resolutions authorizing the execution, delivery
and performance of this Agreement, including the consummation of
the transactions contemplated hereby, by Grantor;
(B)
the certificates described in Section 10(a) hereof;
(C)
all stock certificates representing the Subject Shares, duly
endorsed for transfer to Option Holder accompanied by appropriate
stock powers duly endorsed for transfer to Option Holder;
(D)
a certificate from the Secretary of State of the State of Delaware
as to the Company’s good standing and payment of all taxes in
such jurisdiction dated within three days of the Closing Date;
and
(E)
such other documents, certificates, payments, assignments,
transfers and other deliveries as Option Holder may reasonably
request
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and as are customary to
effect a closing of the matters herein contemplated.
(ii)
Option Holder Documents . Subject to the exercise of the
Option with respect to the Subject Shares pursuant to the terms and
subject to the conditions of this Agreement, at the Option Closing
Option Holder shall deliver or cause to be delivered to
Grantor:
(A)
the certificate described in Section 9(a) hereof;
(B)
the Cash Purchase Price; and
(C)
such other documents, certificates, payments, assignments,
transfers and other deliveries as Grantor may reasonably request
and as are customary to effect a closing of the matters herein
contemplated.
(b)
Purchase of Assets .
(i)
Grantor Documents . Subject to the exercise of the Option
with respect to the Assets pursuant to the terms and subject to the
conditions of this Agreement, at the Option Closing Grantor and the
Company shall deliver or cause to be delivered to Option
Holder:
(A)
certified copies of resolutions authorizing the execution, delivery
and performance of this Agreement, including the consummation of
the transactions contemplated hereby, by Grantor and the
Company;
(B)
the certificates described in Section 10(a) hereof
(C)
the Assignment and Assumption Agreement in the form attached hereto
as Exhibit A ;
(D)
the Assignment and Assumption Agreement FCC Li
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