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Exhibit 4.5
WCK ACQUISITION CORP.
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of June 27, 1988, between WCK
Acquisition Corp., a Delaware corporation (the "Corporation"), and Xxx Xxxxxxxx
(the "Employee").
The Board of Directors of the Corporation (the "Board") has granted to
the Employee, effective immediately, an option to purchase an aggregate of
475,770 shares of the Corporation's Class B Common Stock, par value $0.01 per
share (the "Class B Shares").
Pursuant to the Agreement and Plan of Merger, dated as of June 22,
1988 (the "Merger Agreement"), between the Corporation and Infinity
Broadcasting Corporation, a Delaware corporation ("Infinity" or the "Surviving
Corporation"), the Corporation will merge with and into Infinity (the
"Merger"), and Infinity will assume all of the outstanding obligations of the
Corporation, including the Corporation's obligations hereunder.
To evidence the stock option so granted, and to set forth its terms and
conditions, the Corporation and the Employee hereby agree as follows:
1. CONFORMATION OF GRANT SUBJECT TO PLAN: OPTION PRICE. The Corporation
hereby evidences and confirms its grants to the Employee, on the effective date
set forth above, of an option (the "Option") to purchase 475,770 Class B Shares
at an option price of $0.10 per share.
2. TERM FOR EXERCISE. The Option shall become available for exercise
beginning on the earlier of:
(a) 180 days after the effective time of the Merger;
(b) the date of the Employee's death;
(c) the date of the Employee's disability (as defined below);
(d) the business day before the effective date of any registration
statement of the Surviving Corporation covering any of the Surviving
Corporation's Class A Common Stock; or
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(e) the business day before the effective time, closing or termination
date of any merger or other business combination, tender offer, sale of all
or substantially all of the assets of liquidation (or other similar
transaction) involving the Surviving Company or its Class A Common Stock or
Class B Common Stock, other than the Merger,
subject to the provisions hereof, and provided that for purposes of paragraphs
(a), (d) and (e) of this Section 2, the Employee shall not have ceased to be
employed by the Corporation. The Option shall expire ten years from the date
hereof, and the Class B Shares available under the Option may be purchased at
any time and from time to time in one or more installments.
3. WHO MAY EXERCISE. During the lifetime of the Employee, the Option may be
exercised only by him. If the Employee shall die during his employment by the
Corporation or by a corporation that is a parent or subsidiary of the
Corporation, or by a successor by merger to the Corporation or a parent or
subsidiary of the Corporation, or at such other time as the Employee, if living,
could have exercised his Option, and prior to the expiration date specified in
Section 2 hereof, the Option may be exercised to the extent of the number of
Class B Shares available for exercise by the Employee on the date of his death,
by the Employee's estate, personal representative or beneficiary who acquired
the Option by will or by the laws of descent and distribution, at any time prior
to the earlier of (a) the first anniversary of the Employee's death or (b) the
expiration date specified in Section 2 hereof. On the earlier of such dates, the
Option shall terminate.
4. EXERCISE AFTER TERMINATION OF EMPLOYMENT. If the Employee shall cease
other than by reason of death, to be employed by the Corporation or by a
corporation that is a parent or a subsidiary of the Corporation, or by a
successor by merger to the Corporation or a parent or subsidiary of the
Corporation, the Option shall terminate on the earlier of the expiration date
specified in Section 2 hereof or the date which is three months (or, if the
Employee shall cease to be so employed by reason of disability (as defined in
Section 105(d)(4) of the Internal Revenue Code of 1986, as amended) one year)
after the day his employment ended. In the event of such termination of
employment, the Options may be exercised to the extent of the number of Class B
Shares with respect
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to which the Employee could have exercised it on the day his employment ends.
5. RESTRICTIONS ON EXERCISE. The option may be exercised with respect to
full Class B Shares. No fractional shares of stock shall be issued. the Option
may not be exercised in whole or in part, and no certificates representing Class
B Shares subject to the Option shall be delivered:
(a) if any requisite approval or consent of any governmental authority
of any kind having jurisdiction over the exercise of options shall not have
been secured;
(b) unless all applicable federal, state and local tax withholding
requirements are satisfied.
The Corporation may (but need not) require as a condition to the exercise of
the Option in whole or in part at any time that the Employee (or any person
exercising the Option after his death in accordance with the provisions of
Section 3 hereof) represent to the Corporation or its successor by merger in
writing that he is purchasing the Class B Shares to be acquired upon such
exercise for his own account for investment only and not with a view to
distribution or with any present intention of reselling any thereof.
6. MANNER OF EXERCISE. To the extent the Option shall have become and
remains exercisable as provided in this Agreement, and subject to such
administrative regulations as the Board may adopt, the Option may be exercised
from time to time in whole or in part, by notice to the Secretary of the
Corporation in writing, specifying the number of Class B Shares with respect to
which the Option is being exercised and accompanied by full payment of the
option price for such Class B Shares in (a) cash or cash equivalents, (b) shares
of stock of the Corporation or of any parent or subsidiary of the Corporation,
or of any successor by merger to the Corporation or any parent or subsidiary of
the Corporation, or stock of more than one of such companies, represented by
certificates duly endorsed to the Corporation or its nominees or its successor
by merger, having a market value equal to the option price, or (c) any
combination of the foregoing, provided that the Employee may not pay all or part
of the option price in shares of stock without the approval of the Board. The
Board shall, in its good faith judgment, make all determinations of market
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value of consideration in connection with Section 6 of this Agreement. In the
event that the Option shall be exercised by a person other than the Employee in
accordance with the provisions of Section 3 hereof, such person shall furnish
to the Corporation evidence satisfactory to it of his right to exercise the
Option. The Corporation may require the Employee or other person exercising the
Option to furnish or execute such documents as the corporation shall deem
necessary to evidence such exercise, to determine whether registration is then
required under the Securities Act of 1933, as amended (the "Securities Act"),
or to comply with or satisfy the requirements of the Securities Act or any
other law.
7. NON-ASSIGNABILITY. The Option is not assignable or transferable except
by will or by the laws of descent and distribution to the extent contemplated by
Section 3 hereof. At the request of the Employee, Class B Shares purchased on
exercise of the Option will be issued in or transferred into the name of the
Employee and another person with the right to survivorship.
8. RIGHTS AS STOCKHOLDERS. The Employee shall have no rights as a
stockholder with respect to any Class B Shares covered by the Option until the
issuance of a certificate to him for such Class B Shares. No adjustment shall be
made for dividends or other rights for which the record date is prior to the
issuance of such certificate or certificates.
9. DISPOSITION OF SHARES. If the Employee disposes of any shares received
upon exercise of the Option, whether by sale, exchange, gift, or otherwise
within two years from the date the Option was granted, or within one year from
the date the Class B Shares were transferred to him, the Employee shall notify
the Secretary of the Corporation of the number of such Class B Shares, the date
they were disposed of, the manner of disposition and the amount, if any,
realized upon such disposition.
10. CAPITAL AND OTHER ADJUSTMENTS. In the event of a stock dividend, stock
split or share combination of the common stock, or any recapitalization or other
transaction of the Corporation: (a) the number of the Class B Shares covered by
the Option shall be proportionally adjusted so that the holder of the Option
shall receive upon exercise of the Option, the number of Class B Shares which
such holder would have owned or been entitled to receive after the happening of
such event had
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the Option been exercised pursuant to this Agreement immediately prior to the
happening of such event and (b) the purchase price per Class B Share covered by
the Option shall be correspondingly and proportionally adjusted. To the extent
deemed equitable and appropriate by the board, in its sole discretion, subject
to any required action by the stockholders of the Corporation, in the event of
any merger, consolidation, reorganization, liquidation or dissolution, the
Option shall pertain to the securities and other property, if any, which a
holder of the number of Class B Shares covered by the Option would have been
entitled to receive in connection with such event. In the event that the
Warrants (the "Warrants") issued as contemplated by Schedule III to the
Commitment Letter, dated June 8, 1988, as amended, from Shearson Xxxxxx Xxxxxx
Holdings Inc. shall cover less than 25% of the aggregate amount of the Class B
Shares and the shares of Class A Common Stock of the Company (collectively, the
"Shares"), the number of Class B Shares covered by the Option and this
Agreement shall be adjusted downward so that the Class B Shares received by the
Employee in the Merger, plus the number of Shares covered by this Option (as so
adjusted), shall equal 15% of the Shares then outstanding, assuming exercise of
the Warrants, and assuming that any other options or other similar rights in
respect of the Shares are not exercised.
11. NOTICE. Notice to the Secretary of the Corporation shall be deemed
given in writing and mailed to the Secretary of the Corporation by first-class
mail at the then principal office of the Corporation.
12. INTERPRETATION OF AGREEMENT; GOVERNING LAW. The option is not intended
to be an incentive stock option within the meaning of Section 422A of the Code.
This Agreement shall be construed and enforced in accordance with, and governed
by, the laws of the State of New York.
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IN WITNESS WHEREOF, the Corporation and the Employee have duly executed
this Agreement.
WCK ACQUISITION CORP.
By: /s/ XXXXXXX XXXXXX
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board
and Secretary
Attest:
/s/ XXX XXXXXXXX
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Xxx Xxxxxxxx
/s/ XXXXX XXXXXXX
-----------------------
Name: Xxxxx Xxxxxxx
Title: Vice President-
Finance
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AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of August 2, 1988, between WCK Acquisition
Corp., a Delaware corporation (the "Corporation"), and Xxx Xxxxxxxx (the
"Employee").
WHEREAS, the Corporation and the Employee entered into a Stock Option
Agreement, dated as of June 27, 1988 (the "Stock Option Agreement"), pursuant to
which the Corporation granted to the Employee an option (the "Option") to
purchase an aggregate of 475,770 shares of the Corporation's Class B Common
Stock, par value $0.01 per share (the "Class B Shares"); and
WHEREAS, the Corporation and the Employee desire to amend the Stock Option
Agreement to reduce the number of Class B shares subject to the Option;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. AMENDMENTS. The Corporation and the Employee agree to amend the Stock
Option Agreement by deleting the number "475,770" from the fourth line of
Section 1 of the Stock Option Agreement and substituting therefor the number
"415,229".
2. EFFECTIVENESS; RATIFICATION. The provisions of this Agreement shall
become effective as of the date hereof and shall be binding upon and inure to
the benefit of the parties to this Agreement. Except as amended hereby, the
Stock Option Agreement shall remain in full force and effect.
3. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York.
4. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the Corporation and the Employee have duly executed
this Agreement.
WCK ACQUISITION CORP.
By /s/ XXXXXXX X. XXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
/s/ XXX XXXXXXXX
-------------------------
Xxx Xxxxxxxx
Attest:
/s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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AMENDMENT NO. 1
TO
STOCK OPTION AGREEMENT
AMENDMENT NO. 1 to Stock Option Agreement, dated as of October 14, 1988,
between Infinity Broadcasting Corporation, a Delaware corporation (the
"Corporation," as the successor to WCK Acquisition Corp.), and Xxx Xxxxxxxx (the
"Employee").
The Board of Directors of the Corporation (the "Board") has determined to
increase the number of shares of the Corporation's Class B Common Stock, par
value $.01 per share (the "Class B Shares"), covered by the option (the
"Option") that was granted to the Employee pursuant to the Stock Option
Agreement, dated as of June 27, 1988 (the "Option Agreement"). With this
Amendment No. 1, the Board intends to increase the number of Class B Shares
covered by the option so that upon exercise of the option the Employee would own
approximately ___ of the outstanding shares of the Corporation's common stock,
on a fully diluted basis. This percentage of ownership of the common stock of
the Corporation by the Employee assumes (a) exercise of (i) options held by
other employees of the Corporation, (ii) warrants held by Shearson Xxxxxx Xxxxxx
Inc., and (iii) warrants issued in connection with the Corporation's 14.25%
Senior Subordinated Discount Indentures Due August 1, 1999 for an aggregate
number of the Corporation's shares of common stock equal to 22% of the
Corporation's common stock, on a fully diluted basis and (b) completion of the
purchase by the Corporation from Messrs. Wiener and Carres of a total of 183,472
Class B Shares. In accordance with the terms of a Stock Subscription Agreement,
dated as of June 27, 1988, amended and restated as of August 1, 1988.
To evidence this change in the Option, the Corporation and the Employee
hereby agree that the option Agreement shall be amended as follows:
Section 1. Section 1 of the Option Agreement shall be expanded and restated
to read as follows, in its entirety:
1. CONFIRMATION OF GRANT: OPTION PRICING. The Corporation hereby
evidences and confirm its grant to the Employee, on the effective date set
forth
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above, of an option (the "Option") to purchase 542,135 Class B Shares at an
option price of $0.10 per share.
Section 2. Except as modified, amended, or supplemented hereby, and except
as modified, amended or supplemented hereby, the Option Agreement shall
remain unchanged on in full force and effect.
Section 3. This Amendment No. 1 shall be construed and enforced in
accordance with, and governed by, the Laws of the State of New York.
IN WITNESS WHEREOF, the Corporation and the Employee have duly executed
this Amendment No. 1.
INFINITY BROADCASTING CORPORATION
By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Co-Chairman of the Board
and Secretary
/s/ XXX XXXXXXXX
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Xxx Xxxxxxxx
President and Chief
Executive Officer
Attest:
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
Vice President-Finance and
Chief Financial Officer
