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EXHIBIT 2.2
OPTION AGREEMENT
This Option Agreement (this "Agreement") is made and entered into this
15th day of September, 1999, by and among Cumulus Broadcasting, Inc., a Nevada
corporation, Cumulus Licensing Corp., a Nevada corporation, Cumulus Wireless
Services Inc., their successors and assigns (collectively "Cumulus") and Green
Bay Broadcasting Company, Inc., a Wisconsin corporation ("GBBC").
W I T N E S S E T H:
WHEREAS, GBBC is a licensee of radio stations WQLH-FM and WDUZ-AM
licensed to Green Bay, Wisconsin (collectively the "Stations") under the rules
and regulations of the Federal Communications Commission ("FCC"); and
WHEREAS, the parties have entered into a Local Marketing Agreement (the
"LMA Agreement") of even date whereby GBBC has sold to Cumulus air time on the
Stations under the terms and conditions set forth in that Agreement; and
WHEREAS, Cumulus desires to acquire an exclusive option to acquire
certain assets of the Stations used or intended for use in the Stations'
operations (the "Option to Purchase"), including all permits, authorizations and
licenses issued by the FCC (the "Assets") as set forth in the asset purchase
agreement attached hereto as EXHIBIT A (the "Asset Purchase Agreement"); and
WHEREAS, GBBC desires to have the right during the term of this Option
to require that Cumulus purchase the Assets pursuant to the terms and conditions
of the Asset Purchase Agreement (the "Put"); and
WHEREAS, the parties have entered an escrow agreement of even date with
Xxxxxxxxx & Associates ("Escrow Agent"), pursuant to which Escrow Agent shall
carry out various duties to implement the sale and purchase transaction in the
event that the Option to Purchase or Put is exercised, a copy of which is
attached hereto as EXHIBIT B ("Escrow Agreement");
NOW, THEREFORE, in consideration of Ten Dollars ($10) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. GRANT OF OPTION TO PURCHASE. GBBC hereby grants to Cumulus the
Option to Purchase. The Option to Purchase may be exercised by Cumulus at any
time between March 15, 2003 and September 15, 2004. The Option to Purchase may
be exercised by Cumulus at any time by the delivery of notice by Cumulus to GBBC
as provided below. After Septembr 15, 2004, the Option to Purchase shall
terminate and shall have no further force and effect.
2. OPTION PURCHASE PRICE. The purchase price to be paid to GBBC by
Cumulus in the event that Cumulus exercises the Option to Purchase hereunder
shall be Seven Million Two
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Hundred Fifty Thousand and no/100 Dollars ($7,250,000), payable on the terms and
conditions set forth in the Asset Purchase Agreement.
3. GRANT OF PUT. Cumulus hereby grants to GBBC the Put. In the event
of the exercise of this Put, Cumulus shall have the obligation to purchase the
Assets pursuant to the terms and conditions of the Asset Purchase Agreement.
This Put may be exercised by GBBC at any time between March 15, 2002, and March
14, 2003 by delivery of notive by GBBC to Cumulus as provided below; provided,
however, that (1) the Closing of the transaction following exercise of the Put
shall not occur before January 1, 2003, and (2) GBBC shall have the right to
immediately exercise its Put in the event of a material and uncured
breach of the LMA by Cumulus. After March 14, 2003, the Put shall terminate and
be of no further force and effect.
4. PUT PURCHASE PRICE. The purchase price to be paid to GBBC by
Cumulus as consideration for the Assets in the event that GBBC exercises the Put
hereunder shall be Seven Million and no/100 Dollars ($7,000,000), payable by
wire transfer of immediately available U.S. funds, under the terms and
conditions of the Asset Purchase Agreement.
5. ESCROW AGREEMENT. Simultaneously with the execution of this
Agreement, Cumulus and GBBC have executed, but not dated, duplicate copies of
the Asset Purchase Agreement, a copy of which is attached hereto as Exhibit A.
Both copies of the executed but undated Purchase Agreement shall be delivered to
the Escrow Agent to be held by Escrow Agent subject to the terms of the Escrow
Agreement.
6. EXERCISE OF THE OPTIONS. Either party may exercise the options
granted hereunder at any time permitted under the terms of this Agreement by the
delivery of notice to the other party as provided below. Within the five (5)
business days of the delivery of the notice of the exercise of the Option to
Purchase or Put by either Cumulus or GBBC, respectively, the parties acknowledge
and agree that the Escrow Agent shall date the two executed copies of the Asset
Purchase Agreement with the date of receipt of notice and shall deliver one such
dated executed copy of the Asset Purchase Agreement to each of Cumulus and GBBC,
respectively, and shall carry out the duties of the Escrow Agent specified in
the Escrow Agreement.
7. AGREEMENT TO FULFILL CONDITIONS. Both parties agree to use their
respective best efforts to fulfill and perform all conditions of obligations on
its part to be fulfilled and performed under this Agreement and the Asset
Purchase Agreement and to cause the transactions contemplated by this Agreement
to be fully carried out.
8. NOTICES.
(a) Notices. All notices, demands, and requests required or
permitted hereunder shall be in writing, and shall be deemed properly
given if delivered personally or sent by certified mail, postage
prepaid, return receipt requested, or by commercial overnight delivery
service to the parties at the following addresses or such other address
as either party may specify by written notice to the other. Notices
shall be deemed given on the date of receipt (if delivered in person)
or on
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the date of delivery set forth in the records of the delivery service
(if delivered by commercial delivery service) or on the return receipt
(if delivered by certified mail).
If to GBBC:
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with copy to:
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If to Cumulus: Cumulus Broadcasting, Inc.
Cumulus Licensing Corp.
Cumulus Wireless Services Inc.
111. X. Xxxxxxxx Avenue, Suite 2700
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Escrow Agent:
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(b) Written notification to counsel or by telephone
facsimile shall not constitute notice for purposes of this paragraph.
10. NO WAIVER. The failure of any party at any time to require
performance of any provision of this Agreement shall not affect its right at a
later time to enforce the provision. No waiver of any party of any condition or
of any breach of any term, covenant, representation or warranty contained in
this Agreement shall be effective unless in writing, and no waiver in any one or
more instances shall be deemed to be in other instances a waiver of any other
condition or breach of any other term, covenant, representation or warranty.
11. ENFORCEMENT. Should either party breach or be in default
under this Agreement, the other party shall be entitled to seek judicial
enforcement in law and equity, and such damages as a court of competent
jurisdiction may determine. In any court action, the prevailing party will be
entitled to recovery of reasonable attorney's expenses, court costs, and
reasonable attorney's fees.
12. CONTROL OF STATION. During the term of this Agreement, and
until such time as the Option to Purchase or Put has been exercised, the
Commission has approved the assignment of
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the licenses for Stations from GBBC to Cumulus and the transactions have been
consummated, Cumulus shall not control or attempt to control the operation of
the Stations, but such operations shall be the responsibility of GBBC.
13. OTHER AGREEMENTS. The parties acknowledge that simultaneously
with the execution of this Agreement, the parties have executed a Local
Marketing Agreement and Escrow Agreement, and have executed (but not dated)
duplicate originals of the Asset Purchase Agreement. Notwithstanding, neither
GBBC nor Cumulus may terminate, or refuse to fully and timely perform under,
this Agreement, for any reason relating to the LMA Agreement, the Asset Purchase
Agreement or the Escrow Agreement. Moreover, the termination of the LMA
Agreement by either Cumulus or GBBC shall not be a basis for GBBC or Cumulus to
terminate or refuse to fully and timely perform under this Agreement.
14. AMENDMENTS. The provisions of this Agreement may be amended,
terminated, or waived only by an instrument in writing executed by both parties
or by the party granting a waiver.
15. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect its meaning or interpretation.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. COMPLIANCE WITH COMMUNICATIONS ACT AND FCC RULES. The parties
agree that the provisions of this Agreement are subject to all applicable
requirements under the Communications Act of 1934, as amended (the
"Communications Act"), and the rules, regulations and policies of the FCC
promulgated thereunder ("FCC Rules"). The parties agree that all actions
undertaken pursuant to this Agreement shall be in full compliance with the
requirements of the Communications Act and the FCC Rules, and the parties shall
take no action which would be in violation thereof. Each party agrees to
execute, and to cooperate in the filing and prosecution of, all applications and
other documents which in the opinion of counsel are necessary to obtain FCC or
other governmental approval of any transaction contemplated by this Agreement.
18. FURTHER ASSURANCES. The parties to this Agreement hereby each
pledge to the other that they shall take whatever steps are reasonably
necessary, in good faith, and shall use their best efforts to carry out their
obligations under this Agreement so that the transactions contemplated herein
shall be consummated in a complete and expeditious manner.
19. OTHER DOCUMENTS. The parties shall execute such other
documents as may be necessary and desirable to the implementation and
consummation of this Agreement.
20. ASSIGNMENT. The rights granted to Cumulus by this Agreement
may be assigned by Cumulus to an entity which is controlled by or under common
control with Cumulus upon the providing of written notice to GBBC, provided that
such assignment shall not relieve Cumulus of
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its obligations under this Agreement.
21. CONSTRUCTION. This Agreement shall be construed in accordance with the
laws of the State of Wisconsin.
22. APPLICABLE LAW. This Agreement shall be construed and interpreted in
accordance with Wisconsin law, and all suits herein or in respect hereto shall
be instituted in courts having their forum within the State of Wisconsin.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
GREEN BAY BROADCASTING COMPANY, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Its: Chief Executive Officer
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CUMULUS BROADCASTING, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Its: Executive Chairman
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CUMULUS LICENSING CORP.
By: /s/ Xxxxxxx Xxxxxxx
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Its: Executive Chairman
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CUMULUS WIRELESS SERVICES INC.
By: /s/ Xxxxxxx Xxxxxxx
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Its: /s/ Executive Chairman
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