EXHIBIT 10.1
WARRANT PURCHASE AGREEMENT
This Warrant Purchase Agreement (this "Agreement") is entered into this
15th day of April, 2003, by and between Bull Run Corporation, a corporation
organized under the laws of the State of Georgia (the "Investor") and Gray
Television, Inc., a corporation organized under the laws of the State of Georgia
(the "Company").
RECITALS
WHEREAS, the Company has issued to the Investor a common stock warrant,
dated as of September 24, 1996 for 731,250 shares of Class A Common Stock of the
Company ("Warrant A"); a common stock warrant dated as of September 24, 1996 for
375,000 shares of Class A Common Stock of the Company ("Warrant B") and a common
stock warrant dated as of January 28, 1999 for 100,000 shares of Common Stock of
the Company, ("Warrant C", and together with Warrant A and Warrant B, the
"Warrants"), a copy of each of which is attached hereto as Exhibits A, B and C,
respectively, and pursuant to which the Investor is entitled, subject to the
terms and conditions set forth in the Warrants, to acquire from the Company, at
a purchase price per share of $11.92, $16.00 and $13.625, respectively, at any
time or from time to time prior to January 3, 2006, September 24, 2006, and
December 3, 2011, respectively, those fully paid and non-assessable shares of
the Company's Common Stock and Class A Common Stock, no par value per share; and
WHEREAS, the Investor wishes to sell the Warrants to the Company and
the Company wishes to purchase the Warrants from the Investor;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF WARRANTS; CLOSING
1.1 Securities Purchase and Sale of Securities. On the terms and
subject to the conditions contained in this Agreement, the Company hereby
purchases the Warrants from the Investor, and the Investor hereby sells the
Warrants to the Company. Following the Closings (as herein defined), the
Warrants shall be canceled and retired and shall cease to exist.
1.2 Purchase Price. The aggregate purchase price for the Warrants
shall be $5,120,938 (the "Purchase Price"). The Purchase Price shall be paid or
satisfied at the Closings by means of a check or wire transfer of immediately
available funds to such bank account as designated by the Investor by notice
delivered to the Company.
1.3 No Liens. The Warrants purchased by the Company shall be free
and clear of any liens, claims, equities, security interests, preemptive rights,
judgments and other encumbrances of every kind and nature whatsoever
(collectively, "Encumbrances").
1.4 Time of Closings. The transactions contemplated hereby shall
be consummated on two consecutive days as may be mutually agreed upon by the
parties hereto, at a place to be agreed upon by such parties, as follows:
(a) the portion of Warrant A representing 630,000 of the
shares constituting Warrant A shall be transferred in exchange for a portion of
the Purchase Price equal to $3,244,500 at "Closing A"; and
(b) on the day following Closing A, the remaining portion
of Warrant A, Warrant B and Warrant C shall be transferred for the remaining
$1,876,438 at "Closing B." Closing A and Closing B are referred to herein
collectively as the "Closings."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Corporate Existence and Authorization. The Investor is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Georgia. The execution, delivery and performance by the
Investor of this Agreement and consummation of the transactions contemplated
hereby are within the Investor's corporate powers and have been duly authorized
by all necessary corporate actions on the part of the Investor, and no other
corporate or other approval of the Investor or its shareholders is required in
connection herewith. This Agreement has been duly executed and delivered by the
Investor and constitutes a legal, valid and binding agreement of the Investor
enforceable against it in accordance with its terms.
2.2 Noncontravention. The execution, delivery and performance by
the Investor of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) violate the articles of
incorporation or bylaws of the Investor, (ii) violate any applicable law, rule,
regulation, judgment, injunction, order, or decree to which the Investor is
subject, or (iii) require any consent or other action by any person under, or
constitute a material default under any agreement or other instrument binding
upon the Investor.
2.3 Receipt of Information; Accredited Investor Status. The
Investor represents that it has been furnished with such materials and has been
given access to such information relating to the Company as Investor or
Investor's qualified representative has requested, and Investor has been
afforded the opportunity to ask questions and receive answers from the Company
regarding the business, properties, prospects and financial condition of the
Company. Investor acknowledges that it has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of consummating the transactions contemplated herein. Investor further
acknowledges that it has been advised to and has obtained, to the extent
Investor deems necessary, professional (including legal and tax) advice with
respect to the suitability of the transactions contemplated herein in light of
Investor's condition and investment needs and the terms and conditions of this
Agreement and documents relating hereto. Investor further represents and
warrants that it is an "accredited investor" under the Securities Act of 1933.
2.4 Ownership of the Warrants. The Investor represents and
warrants that the Investor has good and marketable title in and to the Warrants,
free and clear of any lien, pledge, charge, security interest, encumbrance or
any other limitation or restriction.
ARTICLE III
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
3.1 The respective obligations of the Investor and the Company to
perform this Agreement and other transactions contemplated hereby are subject to
the satisfaction of the following conditions:
(a) Receipt of a fairness opinion from Allen & Company
LLC addressed to the Company and Deutsche Bank Trust Company Americas as Trustee
of the Company's Senior Subordinated Notes; and
(b) Approval of this transaction by special committees of
the Board of Directors of the Investor and the Company in accordance with the
provisions of Section 14-2-862 of the Georgia Business Corporation Code.
ARTICLE IV
CLOSING DELIVERIES
4.1 Closing Deliveries by Investor. The Company will deliver or
cause to be delivered to Investor the Purchase Price in the manner set forth in
Sections 1.2 and 1.4.
4.2 Closing Deliveries of Investor. Investor will deliver or cause
to be delivered to the Company all of the following:
(a) the Warrants; and
(b) all other documents reasonably required by the
Company to consummate the transactions contemplated by this Agreement.
ARTICLE V
INDEMNIFICATION AND RELEASE
5.1 Definition of Damages. As used in this Agreement, "Damages"
shall mean all assessments, levies, losses, fines, penalties, liabilities,
damages, costs and expenses, including reasonable attorneys' fees and expenses.
5.2 Investor's Indemnification Obligations. Investor shall
indemnify, save and keep harmless the Company's officers, directors, employees,
agents and their successors and assigns
(each an "Indemnitee"), against and from all Damages sustained or incurred by
any Indemnitee as a result of or arising out of or by virtue of:
(a) any inaccuracy in or breach of any representation and
warranty made by Investor in this Agreement or in any closing document delivered
to the Company in connection herewith; or
(b) any breach by the Investor of, or failure by the
Investor to comply with, any of the covenants or obligations under this
Agreement to be performed by the Investor (including its obligations under this
Article V).
5.3 Release. In order to induce the Company to purchase and the
Investor to sell the Warrants and intending to be legally bound, each party does
hereby release, acquit, discharge and covenant not to sue the other party, its
officers, directors, employees, agents, successors and assigns, and any such
person who may be jointly liable with the same (such parties being referred to
collectively herein as the "Released Parties") from all actions, causes of
action, claims, demands, damages or liabilities, joint or several, known or
unknown, whether or not within the contemplation of the parties, that the
undersigned may have had or may now have against the Released Parties, or any of
them, under any registration, antifraud or other provision of any federal or
state securities law, any rule or regulation thereunder, or under any other
statutory law or common law or otherwise, arising out of or in connection with
any offer or sale to, or purchase from the Investor, of any interest in
(including, without limitation, the Warrants or any other securities or any
right or warrant to purchase the same) or obligation of the Company at any time
prior to the date hereof.
ARTICLE VI
MISCELLANEOUS
6.1 Survival. All representations and warranties made herein or
pursuant to any certificate or instrument delivered pursuant to this Agreement
shall survive the Closings.
6.2 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the Company and the Investor.
6.3 Notices. All notices required or permitted to be given
hereunder shall be in writing and may be delivered by hand, by facsimile, by
nationally recognized private courier, or by United States mail. Notices
delivered by mail shall be deemed given three (3) business days after being
deposited in the United States mail, postage prepaid, registered or certified
mail, return receipt requested. Notices delivered by hand, by facsimile, or by
nationally recognized private courier shall be deemed given on the day of
receipt (if such day is a business day or, if such day is not a business day,
the next succeeding business day).
6.4 Expenses. Provided that the Closings shall occur, the Company
shall pay the fees and expenses incurred by the Company, and the Investor shall
pay the fees and expenses incurred by the Investor.
6.5 Entire Agreement; Binding Effect. This Agreement and the
instruments to be delivered by the parties pursuant to the provisions hereof
constitute the entire agreement between the parties and shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns.
6.6 Non-Waiver. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants or conditions of
this Agreement, to exercise any right or privilege in this Agreement conferred,
or the waiver by such party of any breach of any of the terms, covenants or
conditions of this Agreement, shall not be construed as a subsequent waiver of
any such terms, covenants, conditions, rights or privileges, but the same shall
continue and remain in full force and effect as if no such forbearance or waiver
had occurred. No waiver shall be effective unless it is in writing and signed by
an authorized representative of the waiving party.
6.7 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
6.8 Severability. The invalidity of any provision of this
Agreement or portion of a provision shall not affect the validity of any other
provision of this Agreement or the remaining portion of the applicable
provision.
6.9 Applicable Law. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation, construction, effect and
in all other respects by the internal laws of the State of Georgia.
6.10 Benefits. Except as expressly provided herein, nothing in this
Agreement, express or implied, shall confer on any Person other than the parties
hereto, and their respective successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
including third party beneficiary rights.
6.11 Assignability. This Agreement shall not be assignable by any
party without the prior written consent of the Company and the Investor.
6.12 Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
(signatures on the following page)
IN WITNESS WHEREOF, the undersigned have executed this agreement as of
the date first above written:
COMPANY:
GRAY TELEVISION, INC.
By: /s/ James C. Ryan
-------------------------------
Name: James C. Ryan
Title: Senior Vice President - CFO
INVESTOR:
BULL RUN CORPORATION
By: /s/ Frederick J. Erickson
------------------------------
Name: Frederick J. Erickson
-------------------------------
Title: Vice President-Finance, CFO
-------------------------------
EXHIBIT A
(COMMON STOCK WARRANTS FOR
731,250 SHARES OF CLASS A COMMON STOCK)
EXHIBIT B
(COMMON STOCK WARRANTS FOR
375,000 SHARES OF CLASS A COMMON STOCK)
EXHIBIT C
(COMMON STOCK WARRANTS FOR
100,000 SHARES OF COMMON STOCK)