Concert Radio, Inc. v. Gaf Corp.

108 A.D.2d 273, 488 N.Y.S.2d 696, 1985 N.Y. App. Div. LEXIS 48385
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 9, 1985
StatusPublished
Cited by13 cases

This text of 108 A.D.2d 273 (Concert Radio, Inc. v. Gaf Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Concert Radio, Inc. v. Gaf Corp., 108 A.D.2d 273, 488 N.Y.S.2d 696, 1985 N.Y. App. Div. LEXIS 48385 (N.Y. Ct. App. 1985).

Opinions

OPINION OF THE COURT

Asch, J.

WNCN-FM broadcasts classical music 24 hours a day. In 1974, the then owner of WNCN, Starr Broadcasting Group, Inc. (Starr), finding it not profitable to operate the station under a classical music format, transformed the station to a rock music station under the call letters of WQIV. This resulted in a storm of opposition from WNCN listeners. Several public interest groups were formed to oppose the change. They included the Listeners’ Guild, Inc., and Classical Radio for Connecticut, Inc. (Listeners and CRC, respectively, and Listeners Groups, collectively).

When Starr’s license came up for renewal before the Federal Communication Commission (FCC) in 1975, the Listeners Groups filed petitions to deny the application for renewal, and organized Concert Radio, Inc. (Concert), to challenge Starr’s license to operate WNCN. Concert filed a competing application for the license, pursuant to FCC rules, stating its intent to operate WNCN as a classical station.

While Concert was pursuing its challenge to Starr’s license with the support of the Listeners Groups, GAF approached Starr and expressed an interest in acquiring WNCN. Starr agreed, in principle to sell the station to GAF for approximately $2.2 million. GAF intended to restore the classical music format as well as the call letters WNCN. In order to transfer the license to GAF, FCC approval of the transfer had to be obtained and Concert’s competing application for the license had to be overcome. After extensive negotiations and consultation with the FCC, a so-called “five-party agreement” was entered into among Starr, GAF, Concert and the Listeners Groups, on February 19, 1976, which made it possible for GAF to acquire WNCN. One condition of the five-party agreement was GAF’s entry into an option agreement with Concert, dated April 9, 1976.

The option agreement recites that: “[I]t is GAF’s intention to operate Station for at least five years primarily as a classical music station * * * and it is GAF’s present intention to sell [275]*275Station if it no longer wishes to operate it primarily as a classical music station within the next five years, and it is therefore willing to give Concert the option provided for herein”.

The option provides in paragraph 1: “1. GAF hereby gives Concert, for a period of five (5) years from the closing date under said WQIV Sales Agreement, an option to acquire the Station Assets for the purpose of operating Station primarily as a classical music station, subject to the exercise of programming discretion as a licensee consistent with the public interest, if GAF decides to sell Station, or transfer control of Station to someone other than a subsidiary or affiliate of GAF, it being understood that any merger or consolidation involving GAF with or into any other corporation shall not be treated as a sale of Station or a transfer of its control within the meaning of this option agreement.” The option price is spelled out in detail, but in essence it is somewhat more than GAF’s book cost for the radio station (the $2.2 million plus GAF’s additional capital expenditures less depreciation thereon). GAF is required to notify Concert promptly of the decision to sell, and if Concert gives notice of a bona fide intention to exercise the option, GAF must provide certain information and tender a form of agreement. There is no requirement that Concert be notified of the identity of the proposed buyer or the price or terms of the proposed sale. The option agreement also provides Concert with a right of first refusal, if Concert does not exercise the option, as follows: “If thereafter during the remainder of the five (5) year period provided for in Paragraph 1 GAF receives and is prepared to accept a bona fide offer to buy Station, Concert shall be given written notice of such offer and the terms and conditions thereof and may, within sixty (60) days of such notice, exercise its right of first refusal by making a firm and binding commitment to purchase Station at a price which is the lesser of the offered price or Two Million Five Hundred Thousand Dollars”.

On December 29, 1980, the GAF board of directors adopted a resolution which contains a preliminary finding that it would be advantageous, “to offer for sale certain of the operations of the Corporation or, in the event sale on acceptable terms is not feasible, to discontinue such operations.”

The resolution then directed the officers to: “take such actions as may be necessary or appropriate to effect the sale of the corporation’s operations in the following areas * * * radio station WNCN (owned and operated by GAF Broadcasting Company, Inc.) and * * * in the event that such officers determine that sale of any such operation or operations on acceptable terms is not [276]*276feasible, to effect the discontinuance of such operation or operations” (emphasis added).

On December 30, 1980, a press release was issued and a press conference announcing these actions was held, at which GAF’s chairman and chief executive officer claimed that GAF had saved WNCN, but admitted that it was not profitable, and concluded that “this is the time to pass the baton”. The necessary bookkeeping entries were made and the Securities and Exchange Commission (S.E.C.) was also duly notified regarding the aforementioned resolution.

Without waiting for a notification from GAF that it had decided to sell the station, as required by the option agreement, Concert gave GAF the appropriate notice of intention to exercise its option, on January 12, 1981. On January 23, 1981, GAF replied to such notice, denying that it had decided to sell the station to “someone” and contending that the option would not be exercisable until it had done so. GAF also refused to supply a form of agreement or financial information as required by the option agreement.

Concert sued in February 1981, seeking specific performance of the option agreement and compensatory damages. At a bench trial in June 1984, GAF contended that a decision to offer for sale was not a decision to sell, which could only be made to a known purchaser at a specified price and upon certain terms and conditions. The trial court held that there could be a decision to sell without an identifiable purchaser at a specific price, and directed specific performance by GAF of the contract entered into with plaintiff, dated April 9, 1976, subject to any limitations on the court’s jurisdiction.

The central question is whether Concert’s right to exercise its option was, in fact, triggered by GAF’s conduct in announcing and planning for the sale of WNCN in 1980. It is GAF’s contention that a decision to sell could not be made until it approved an identified buyer and a specific selling price.

In interpreting the language of the option agreement, “[t]he intent of the parties must be distilled from the terms of the written agreement itself” (Frankel v Tremont Norman Motors Corp., 21 Misc 2d 20, 22, affd 10 AD2d 680, affd 8 NY2d 901).

While GAF contends that the language requires that a specific “someone” be named before a decision to sell could be made, the plain reading of the clause reveals that the drafters envision two separate events. The option may be triggered if “GAF decides to sell Station” and the option may also be triggered if GAF decides to “transfer control of Station to someone other [277]*277than a subsidiary or affiliate.” The word “someone” modifies the words “transfer control” rather than “sell”.

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Cite This Page — Counsel Stack

Bluebook (online)
108 A.D.2d 273, 488 N.Y.S.2d 696, 1985 N.Y. App. Div. LEXIS 48385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concert-radio-inc-v-gaf-corp-nyappdiv-1985.