As filed with the Securities and Exchange Commission
on December 7, 1999
Registration Statement No. 333-88363
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933*
---------------
INFINITY BROADCASTING CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 13-4030071
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
40 West 57th Street
New York, New York 10019
(Address of Registrant's principal executive offices,
including zip code)
OUTDOOR SYSTEMS, INC. 1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
OUTDOOR SYSTEMS, INC. 1996 OMNIBUS PLAN
STOCK OPTION AGREEMENTS
(Full title of the plan)
ANGELINE C. STRAKA
Vice President and Secretary
Infinity Broadcasting Corporation
40 West 57th Street
New York, New York 10019
(212) 975-4321
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
* Filed as a Post-Effective Amendment on Form S-8 to such Form
S-4 Registration Statement (No. 333-88363) pursuant to the
procedure described in this Amendment. See "Introductory
Statement."
<PAGE>
INTRODUCTORY STATEMENT
Infinity Broadcasting Corporation amends its registration
statement on Form S-4 (No. 333-88363) by filing this Post-
Effective Amendment No. 2 on Form S-8 relating to the sale of up
to 27,822,031 shares of Class A Common Stock of Infinity issuable
on the exercise of stock options or issuable on the payment of
incentive stock awards granted under the following Outdoor
Systems, Inc. plans:
* Outdoor Systems, Inc. 1996 Non-Employee Director Stock
Option Plan
* Outdoor Systems, Inc. 1996 Omnibus Plan
* Agreement and Grant of Option dated as of April 3,
1989, between Outdoor Systems, Inc. and Arturo R.
Moreno, as amended by the First Amendment to Agreement
and Grant of Option dated as of January 1, 1991
* Agreement and Grant of Option dated as of January
1, 1991, between Outdoor Systems, Inc. and Wally Kelly
On December 7, 1999, Burma Acquisition Corp., a wholly-
owned subsidiary of Infinity, merged with and into Outdoor
Systems, Inc., with Outdoor Systems being the surviving
corporation in the Merger. As a result of the Merger, Outdoor
Systems became a wholly-owned subsidiary of Infinity and each
outstanding share of Outdoor Systems common stock, with certain
exceptions, was converted into 1.25 shares of Infinity Class A
Common Stock. In addition, as part of the Merger Agreement,
Infinity assumed Outdoor Systems' obligations under the
outstanding stock options and incentive stock awards granted
under the Outdoor Systems plans and agreements listed above, and
each such stock option and incentive stock award is no longer
exercisable for, or payable in, Outdoor Systems common stock, but
rather allows the holder to acquire, on the same terms and
conditions as before the Merger, shares of Infinity Class A
Common Stock adjusted to reflect the exchange ratio that was
applied in the Merger. Based on this adjustment, Outdoor Systems
stock options and incentive stock awards became options or awards
for a number of shares of Infinity Class A Common Stock equal to
the number of shares of Outdoor Systems common stock for which
the stock option was exercisable, or the incentive stock award
was payable, multiplied by 1.25, rounded, in the case of any
stock options other than "incentive stock options" and in the
case of incentive stock awards, up, and, in the case of any
incentive stock options, down, to the nearest whole share. The
exercise price per share of Infinity Class A Common Stock under
such stock options is equal to the exercise price immediately
prior to the Merger divided by 1.25, the exchange ratio, rounded
up to the nearest whole cent, if necessary. The Outdoor Systems
incentive stock awards had no exercise price, and so the
incentive awards as assumed by Infinity have no exercise price.
The designation of this Post-Effective Amendment as
Registration No. 333-88363 denotes that the Post-Effective
Amendment relates only to the shares of Infinity Class A Common
Stock issuable on the exercise of stock options or upon payment
of incentive stock awards under the Outdoor Systems plans and
agreements listed above and that this is the second post-effective
amendment to the Form S-4 filed with respect to those shares.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, each as filed with the Securities
and Exchange Commission, are incorporated in this Registration
Statement by reference as of their respective filing dates:
* Infinity's Annual Report on Form 10-K, as amended by
Form 10-K/A, for the year ended December 31, 1998
* All other reports filed by Infinity pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since
December 31, 1998
* The description of risk factors and the unaudited pro
forma financial information contained in Part I of
Infinity's Registration Statement on Form S-4 (Registration
Statement No. 333-88363) filed on October 4, 1999
* The description of Infinity's Class A Common Stock
contained in Infinity's Current Report on Form 8-K filed
with the SEC on October 20, 1999, as amended or updated
pursuant to the Exchange Act
All reports and other documents subsequently filed by
Infinity pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act will be deemed to be incorporated by reference in
this Registration Statement and to be a part of this Registration
Statement from the respective date of filing of each of those
documents until the filing of a post-effective amendment to this
Registration Statement which indicates either that all securities
offered by this Registration Statement have been sold or which
deregisters all of the securities under this Registration
Statement then remaining unsold. Any statement contained in this
Registration Statement or in a document incorporated or deemed to
be incorporated by reference in this Registration Statement will
be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
in this Registration Statement or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference in this Registration Statement modifies or supersedes
that statement. Any statement so modified or superseded will not
be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Angeline C. Straka, Vice President and Secretary of
Infinity, has provided an opinion regarding the legality of the
securities being registered under this Post-Effective Amendment No. 2
to the Registration Statement. As of December 7, 1999, Ms.
Straka held 1,000 shares of Infinity Class A Common Stock.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Infinity is incorporated under the laws of the State of
Delaware. Under Section 145 of the Delaware General Corporation
Law, Infinity is empowered to indemnify its directors and
officers in the circumstances provided in Section 145. Certain
portions of Section 145 are summarized below.
Section 145(a) of the DGCL provides that a corporation may
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses,
including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's
conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses,
including attorneys' fees, actually and reasonably incurred by
such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court
of Chancery or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that
a present or former director or officer of a corporation has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Section 145(a) and (b), or in
defense of any claim, issue or matter therein, such person shall
be indemnified against expenses, including attorneys' fees,
actually and reasonably incurred by such person in connection
therewith.
Section 145(d) of the DGCL provides that any indemnification
under Section 145(a) and (b), unless ordered by a court, shall be
made by the corporation only as authorized in the specific case
upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard
of conduct set forth in Section 145(a) and (b). Such
determination shall be made with respect to a person who is a
director or officer at the time of such determination (1) by a
majority vote of the directors who were not parties to such
action, suit or proceeding, even though less than a quorum, or
(2) by a committee of such directors designated by majority vote
of such directors, even though less than a quorum, or (3) if
there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the
stockholders.
Section 145(e) of the DGCL provides that expenses, including
attorneys' fees, incurred by an officer or director in defending
any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as
authorized in Section 145. Such expenses, including attorneys'
fees, incurred by former directors and officers or other
employees and agents may be so paid upon such terms and
conditions, if any, as the corporation deems appropriate.
Section 145(f) of the DGCL provides that the indemnification
and advancement of expenses provided by, or granted pursuant to,
Section 145 shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any by-law, agreement, vote of stockholders
or disinterested directors or otherwise.
Section 145(g) of the DGCL provides that a corporation shall
have the power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the corporation
would have the power to indemnify such person against such
liability under Section 145.
Infinity's Restated Certificate of Incorporation contains a
provision eliminating, to the fullest extent permitted by the
DGCL as it exists or may in the future be amended, the liability
of a director to Infinity and its stockholders for monetary
damages for breaches of fiduciary or other duty as a director.
However, the DGCL does not currently allow such provision to
limit the liability of a director for: (1) any breach of the
director's duty of loyalty to Infinity or its stockholders; (2)
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of laws; (3) payment of
dividends, stock purchases or redemptions that violate the DGCL;
or (4) any transaction from which the director derived an
improper personal benefit. Such limitation of liability also does
not affect the availability of equitable remedies such as
injunctive relief or rescission.
Infinity's Restated Certificate of Incorporation and its
Restated By-Laws also provide that, to the fullest extent
permitted by the DGCL as it exists or may in the future be
amended, Infinity will indemnify and hold harmless any officer or
director who is or was made a party or is threatened to be made a
party to or is involved in any manner in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such
person is or was an officer or director of Infinity or a director
or elected officer of a subsidiary of Infinity, and may indemnify
any employee or agent of Infinity and any person serving at the
request of Infinity as a officer, director, partner, member,
employee or agent of another corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or
other enterprise; provided, however, that Infinity will indemnify
any such person seeking indemnification in connection with a
proceeding or part of a proceeding initiated by such person only
if such proceeding or part of a proceeding was authorized by the
Board of Directors or is a proceeding to enforce such person's
claim to indemnification pursuant to the rights granted by
Infinity's Restated Certificate of Incorporation or Infinity's
Restated By-Laws. In addition, Infinity will pay the expenses
incurred by any officers and directors, and may pay the expenses
incurred by other persons that may be indemnified pursuant to its
Restated Certificate of Incorporation and its Restated By-Laws,
in defending any such proceeding in advance of its final
disposition upon receipt, unless Infinity upon authorization of
the Board of Directors waives such requirement to the extent
permitted by applicable law, of an undertaking by or on behalf of
such person to repay such amount if it is ultimately determined
that such person is not entitled to be indemnified by Infinity as
authorized in its Restated By-Laws or otherwise. Infinity's
Restated By-Laws also state that such indemnification is not
exclusive of any other rights of the indemnified party, including
rights under any indemnification agreements or otherwise.
CBS Corporation currently maintains insurance on behalf of
officers and directors of CBS Corporation and its subsidiaries
(including Infinity and its subsidiaries) against any liability
which may be asserted against any such officer or director,
subject to certain customary exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
---------- -----------
4.1 Restated Certificate of Incorporation of Infinity as of
December 14, 1998 is incorporated by reference to Exhibit 3.1 to
Infinity's Form 10-Q for the quarter ended June 30, 1999
4.2 Restated By-Laws of Infinity as of December 14, 1998 are
incorporated by reference to Exhibit 3.2 to Infinity's Form 10-Q
for the quarter ended June 30, 1999
4.3 Outdoor Systems, Inc. 1996 Non-Employee Director
Stock Option Plan is incorporated by reference to
Exhibit 99.3 to Registration Statement No. 333-38589 on
Form S-8 filed by Outdoor Systems, Inc. with the SEC on
October 23, 1997
4.4 Outdoor Systems, Inc. 1996 Omnibus Plan is
incorporated by reference to Exhibit 10.16 to
Registration Statement No. 333-1582 on Form S-1 filed
by Outdoor Systems, Inc. with the SEC on February 22,
1996
* 4.5 Agreement and Grant of Option dated as of April 3,
1989, between Outdoor Systems, Inc. and Arturo R.
Moreno, as amended by the First Amendment to Agreement
and Grant of Option dated as of January 1, 1991
* 4.6 Agreement and Grant of Option dated as of January
1, 1991, between Outdoor Systems, Inc. and Wally Kelly
4.7 Agreement and Plan of Merger, dated May 27, 1999, among
Infinity, Burma Acquisition Corp. and Outdoor Systems,
Inc., is incorporated herein by reference to Exhibit
99.1 to the report on Form 8-K of Outdoor Systems,
Inc., filed with the Securities and Exchange Commission
on June 3, 1999
4.8 Amendment No. 1, dated June 16, 1999, to the Agreement
and Plan of Merger, dated May 27, 1999, among Infinity,
Burma Acquisition Corp. and Outdoor Systems, Inc., is
incorporated herein by reference to Exhibit 99.2 to
Infinity's report on Form 8-K, filed with the
Securities and Exchange Commission on June 25, 1999
* 5.1 Opinion of Angeline C. Straka, Vice President &
Secretary of Infinity, as to the legality of the
securities being registered
* 23.1 Consent of Counsel - contained in opinion filed as
Exhibit 5.1
* 23.2 Consent of KPMG LLP
** 24 Powers of Attorney
- ----------------------
* Filed herewith
** Previously filed
ITEM 9. UNDERTAKINGS
Infinity hereby undertakes:
* to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
* that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offer
thereof;
* to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering;
* that, for purposes of determining any liability under the
Securities Act of 1933, each filing of Infinity's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934, and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934, that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
* insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of Infinity pursuant to the foregoing
provisions, or otherwise, Infinity has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities, other than the payment
by Infinity of expenses incurred or paid by a director, officer
or controlling person of Infinity in the successful defense of
any action, suit or proceeding, is asserted by such director,
officer or controlling person in connection with the securities
being registered, Infinity will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant, Infinity Broadcasting Corporation, certifies that
it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-
Effective Amendment No. 2 to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 7th day of
December, 1999.
INFINITY BROADCASTING CORPORATION
By: /s/ Angeline C. Straka
----------------------------------
Angeline C. Straka
Vice President & Secretary
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 2 to the Registration Statement
has been signed by the following persons on the 7th day of December, 1999,
in the capacities indicated:
SIGNATURE TITLE
* Chairman, President and
Chief Executive Officer
- ------------------------ (principal executive officer)
(Mel Karmazin) and Director
* Executive Vice President,
Chief Financial Officer and
- ------------------------ Treasurer
(Farid Suleman) (principal financial officer)
and Director
*
- ------------------------ Director
(George H. Conrades)
*
- ------------------------ Director
(Bruce S. Gordon)
*
- ------------------------ Director
(Richard R. Pivirotto)
*
- ------------------------ Director
(Jeffrey Sherman)
*
- ------------------------ Director
(Dr. Paula Stern)
*
- ------------------------ Director
(Robert D. Walter)
*By /s/ Angeline C. Straka
-----------------------
Angeline C. Straka
ATTORNEY-IN-FACT
<APGE>
INDEX OF EXHIBITS FILED WITH THIS POST-EFFECTIVE AMENDMENT NO. 2
EXHIBIT NO. DESCRIPTION
---------- -----------
4.5 Agreement and Grant of Option dated as of April 3,
1989, between Outdoor Systems, Inc. and Arturo R.
Moreno, as amended by the First Amendment to Agreement
and Grant of Option dated as of January 1, 1991
4.6 Agreement and Grant of Option dated as of January
1, 1991, between Outdoor Systems, Inc. and Wally Kelly
5.1 Opinion of Angeline C. Straka, Vice President &
Secretary of Infinity, as to the legality of the
securities being registered
23.1 Consent of Counsel - contained in opinion
filed as Exhibit 5.1
23.2 Consent of KPMG LLP
Exhibit 4.5
Outdoor Systems, Inc.
2502 North Black Canyon Highway
Phoenix, Arizona 85009
Mr. Arte Moreno
2502 North Black Canyon Highway
Phoenix, Arizona 85009
Dear Moreno:
This is to confirm with you that your nonqualified
options granted in 1989 and 1991 are and have been fully
vested. Also this confirms your and our understandings that
none of the final arrangements relating to such options has
ever included any right or obligation on your part or on
ours with respect to any indemnification, put, call, or
right of first refusal or any similar right, except for your
right to purchase the shares covered by such options.
Accordingly, it has been your and our consistent agreement
that the options and the shares subject to the options are
not and have not been subject to any transfer restrictions
imposed by or in favor of the undersigned or put obligations
in favor of you.
If the foregoing correctly reflects your
understandings, please so indicate by signing this letter
below.
Very truly yours,
OUTDOOR SYSTEMS, INC.
/S/ William S. Levine
By: William S. Levine,
Chairman
/S/ Arte Moreno
- ------------------
Arte Moreno
<PAGE>
AGREEMENT AND GRANT OF OPTION
Mr. Arthur Moreno
Outdoor Systems, Inc.
2810 W. Camelback
Phoenix, Arizona 85017
Dear Arte:
I am happy to advise you that you have been selected by
the Board of Directors (the "Board") of Outdoor Systems,
Inc. (the "Corporation"), to receive a non-qualified stock
option and that as of the date hereof, you were granted an
option to purchase One Hundred Nineteen and 51/100 (119.51)
shares of the Corporation's Common Stock (the "Shares") at a
price of One Thousand Three Hundred Ten Dollars ($1,310.00)
per share upon the terms and conditions set forth in this
letter, subject, however, to your acceptance of the terms
and conditions set forth herein.
The Board has imposed the following terms and
conditions relating to your option and its exercise:
1. EXERCISE OF OPTION. You may exercise your option
by delivery to the Corporation (in care of its Secretary, at
2810 West Camelback Road, Phoenix, Arizona 85017, or to such
other person or place as the Corporation may designate to
you in writing) of a written, irrevocable notice of exercise
specifying the number of shares with respect to which the
option is being exercised, together with payment of the
exercise price for those shares in cash or by certified
check. Any other form of exercise or tender may be refused
by the Corporation, acting through the Board or otherwise,
in its discretion. The option may be exercised for all or
less than all the number of shares subject to the option,
and may, during its term, be thereafter exercised as often
as you choose for any shares as to which you might
theretofore have exercised you option but have failed to do
so.
2. NONTRANSFERABLE. Your option is not transferable
other than by will or the laws of descent and distribution
and is exercisable, during your lifetime, only by you. You
may not assign or otherwise transfer or encumber your option
or any interest in your option to any person in any way.
3. TERMINATION.
Your option will terminate as to all unexercised
shares.
(a) Upon your death; except as modified by subparagraph
3(c) hereof.
(b) You incur any disability which prevents you from
performing your duties, or substantially impairs your
performance thereof for a consecutive period of sixty (60)
days, or for any cumulative 180 days in a 12 month period
(herein "Permanent Disability").
(c) Notwithstanding the foregoing:
(1) In the event of your termination as an Employee by
reason of Permanent Disability, while an Employee of the
Corporation in good standing, you or your guardian on your
behalf, will have a period of One Hundred Twenty (120) days
after the date of such termination in which you may exercise
the option granted herein as to any unexercised shares;
subject, however, to the restrictions set forth in paragraph
6 hereof.
(2) In the event of your death while an Employee of the
Corporation in good standing, your legal representative will
have a period of One Hundred Twenty (120) days after the
date of your death to exercise the option granted herein as
to any unexercised shares; subject, however, to the
restrictions set forth in paragraph 6 hereof.
(3) This option will terminate after the aforesaid One
Hundred Twenty (120) days with respect to all unexercised
shares.
4. SUFFICIENT AUTHORIZED STOCK. The Corporation will
reserve or keep available at all times sufficient shares of
common stock of the Corporation to permit the exercise of
your option.
5. NON-REGISTRATION. The shares of the Corporation
to be issued to you upon exercise of your option will not be
registered under the Securities Act of 1993, as amended (the
"Act"), or any applicable state securities laws, in reliance
on exemptions therefrom; and you, by your acceptance of this
Agreement, represent that you are acquiring any shares with
respect to which you exercise your options, for investment
and not for resale or distribution. If in the opinion of
counsel satisfactory to the Corporation no exemption from
registration is then available, or if such issuance is
otherwise in violation of applicable law at the time
purchase rights are exercised under this option, the
Corporation shall be under no obligation to issue Shares
upon exercise of your option.
6. RESTRICTIONS ON DISPOSITION OF ACQUIRED SHARES.
All Shares acquired by you pursuant to this Agreement shall
be acquired subject to the following restrictions and
conditions:
(a) No Shares may be sold, assigned, transferred,
conveyed, granted, mortgaged, hypothecated or in any way
alienated or encumbered except to the Corporation or a then
existing shareholder of the Corporation, unless there has
been previously obtained the written consent of all
shareholders of the Corporation to the specific transaction
intended. Any attempted transfer in violation of this
provision shall be null and void AB INITIO and shall give
the prospective transferee no rights in and to the
Corporation or its stock.
(b) Notwithstanding the foregoing, you may
transfer acquired shares to members of your immediate family
or to a corporation, partnership, or Trust wholly owned by
you or members of your immediate family without prior
consent of the other shareholders of the Corporation;
provided, however, that such shares shall continue to be
bound by all the conditions and restrictions of this
Agreement, including limitations on transfer, that you give
written notice to the Corporation of the transfer prior to
its effective date and that, as a precondition to the
effectiveness of such transfer, the person or persons
acquiring such stock execute and deliver to the Corporation
a document in which they covenant and agree to be bound by
all the terms and conditions of this Agreement, specifically
including the obligations to sell the stock to the
Corporation on the terms and upon the happening of the
events set forth herein.
(c) If, you should voluntarily terminate your
employment with the Corporation or if you are terminated
because of Permanent Disability, as defined in subparagraph
3(a)(3) hereof, or if you should die while an employee of
the Corporation, or if, you should desire to sell your
acquired shares while an Employee in good standing, you
agree that you, or your legal representative, will sell to
the Corporation, or its nominee, at its election, all shares
in the Corporation acquired by you, or which you may
continue to have a right to acquire pursuant to this
Agreement and Grant of Option. The purchase price for such
shares shall be the fair market value of such shares on the
date of termination or death, or notice of desire to sell,
and shall be determined as set forth in paragraph 7 hereof.
The date of closing of such sale shall be set by the
Corporation, but shall, in the event of death or termination
by reason of disability, be set for a period no earlier than
thirty (30) days after the exercise of the limited right to
exercise the option set forth in sub-paragraphs 3(c)(1) or
3(c)(2) hereof, or One Hundred Fifty (150) days after
termination or death, whichever first occurs. The Purchase
Price shall be payable at closing as follows:
(1) Payment of a down-payment in an amount equal to the
total cash paid by you or your legal representative in
exercising your option granted pursuant to this Agreement.
(2) Delivery of a promissory note of the Corporation
providing for payment of the balance of the Purchase Price
in One Hundred Twenty (120) equal amortized installments of
principal and accrued interest, with interest on the unpaid
principal balance accruing at a rate of six percent (6%) per
annum. The first monthly payment shall be due on the first
day of the first calendar month following the date of the
closing, and payments shall be made monthly thereafter, on
the first business day of each succeeding month, until the
principal amount and accrued interest thereon are paid in
full. The note shall further provide for acceleration and
an interest rate of ten percent (10%) per annum in the event
of default. All payments shall be applied first to accrued
interest and then to principal.
(3) All shares issued as a result of the exercise of the
option granted pursuant to this Agreement shall bear a
legend noting that the transfer of such shares are subject
to the restrictions set forth herein.
7. FAIR MARKET VALUE. For purposes of this Agreement
and Grant of Option, the fair market value of the shares of
stock of the Corporation shall be determined by Agreement
between the Corporation and you or your legal
representative. If such agreement is not reached within
thirty (30) days from your termination, request to sell, or
death, the fair market value of each share of stock shall be
such share's pro-rata portion of (a) an amount equal to
three (3) times the Gross Revenue of the Company for the
twelve (12) month period immediately preceding your
termination, request to sell, or death, as the case may be,
less (b) the excess, if any, of the debt of the Corporation
over assets of the Corporation on the date of termination.
8. WITHHOLDING TAXES. You agree to pay to the
Corporation or to make arrangements satisfactory to the
Board to pay to the Corporation, at such time as any income
is recognized by you with respect to this option, any
federal, state, or local taxes of any kind required by law
to be withheld on such income by the Corporation.
9. REORGANIZATIONS. As contemplated by the terms of
the Plan, the number of shares subject to your option and
the exercise price for your option, like all other options
under the Plan, are subject to appropriate adjustment by the
Board for stock splits, recapitalizations and other
comparable dilutive or contradilutive transactions affecting
the Shares.
10. GOVERNING LAW. The Plan and this option granted
to you thereunder are governed by, and shall be interpreted
according to, the laws of the State of Arizona.
11. BINDING EFFECT. This Agreement will be binding
upon and inure to the benefits of the parties hereto and
their respective heirs, successors, and permitted assigns.
12. ACCEPTANCE. Please acknowledge your receipt of
this letter, together with the materials referred to herein
and your agreement to the terms and conditions of your
option as set forth herein, by signing the enclosed copy of
this letter and returning it promptly to the Secretary of
the Corporation at 2810 West Camelback Road, Phoenix,
Arizona 85017. Any questions concerning any matter relating
to your stock option or should also be addressed to the
Secretary.
Very truly yours,
OUTDOOR SYSTEMS, INC.
By /S/ William S. Levine
-------------------------
William S. Levine
Chairman of the Board and
Secretary
ACCEPTED AND AGREED:
/S/ Arthur Moreno
- -----------------
Arthur Moreno
/S/ April 3, 1989
- -----------------
Date
<PAGE>
OUTDOOR SYSTEMS, INC.
2810 West Camelback Road
Phoenix, Arizona 85017
As of January 1, 1991
Mr. Arthur Moreno
OUTDOOR SYSTEMS, INC.
2810 West Camelback Road
Phoenix, Arizona 85017
Re: First Amendment to Agreement and Grant of Option
Dear Arte:
Outdoor Systems, Inc. (the "Corporation") and you have
entered into an Agreement and Grant of Option as of April 3,
1989, a true, correct and complete copy of which is attached
hereto as Exhibit A (the "Agreement"). Under the Agreement,
you received a non-qualified stock option to purchase one
hundred nineteen and 51/100 (119.51) shares of the
Corporation's common stock (the "Shares") at a price of One
Thousand Three Hundred Ten Dollars ($1,310) per share on the
terms and conditions set forth in the Agreement.
You and the Corporation have agreed to amend the
Agreement in the manner hereinafter set forth.
1. On the same terms and conditions set forth in the
Agreement, the Corporation hereby grants to you the option
to acquire Sixteen and 69/100 (16.69) shares of the
Corporation's common stock at a price of $23,983.87 per
share (the "Additional Shares"). All references in the
agreement and in the First Amendment to "Shares" shall be
deemed to include the Additional Shares.
2. Section 6 of the Agreement is deleted and the
following is substituted therefor:
6. RESTRICTIONS ON DISPOSITION OF ACQUIRED
STOCK. All shares acquired by you pursuant to this
Agreement shall be acquired subject to the following
restrictions and conditions:
(a) The restrictions contained in Article
II, Section 13 of the Corporation's Bylaws will
also apply to the Shares, a copy of which is
attached hereto as Exhibit B and by this reference
is incorporated herein.
(b) If you are terminated because of
Permanent Disability, as defined in subparagraph
3(a)(3) hereof, you agree that you, or your
conservator, will sell to the Corporation (or at
the Corporation's election, its nominee) and the
Corporation agrees to purchase from you all shares
in the Corporation acquired by you, or which you
may continue to have a right to acquire pursuant
to this Agreement and Grant of Option shall all
shares acquired by you or which you may continue
to have the right to acquire from Stephen J.
Haberkorn pursuant to an Option Agreement dated
October 1, 1988.
(c) If you should voluntarily terminate your
employment with the Corporation, or are terminated
by the Corporation, you agree that you will sell
to the Corporation (or its subsidiary Outdoor
Systems of Texas, Inc. ("OSIT")), upon the
Corporation's written election, all shares in the
Corporation acquired by you, or which you may
continue to have a right to acquire pursuant to
the Agreement and Grant of Option and all shares
acquired by you or which you may continue to have
the right to acquire from Stephen J. Haberkorn
pursuant to an option agreement dated October 1,
1988. The Corporation has no obligation to
purchase under the circumstance allowed in this
subparagraph. If the Corporation fails to
exercise the option hereunder by written notice
within six (6) months after your termination of
employment, the Corporation's option under this
subparagraph (but not the other restrictions set
forth herein) shall expire.
(d) The purchase price for shares under
subsections (b) and (c) above shall be the fair
market value of such shares determined as set
forth in paragraph 7 hereof. The date of closing
of such sale shall be set by the Corporation, but
shall: (i) in the event of termination by reason
of disability, be set for a period no earlier than
thirty (30) days after the time for exercise of
the option set forth in subparagraphs 3(c)(1),
3(c)(2) hereof or One Hundred Fifty (150) days
after termination, whichever first occurs; and
(ii) in the case of a termination under 6(c)
hereof, be set for a date not less than thirty
(30) days nor more than ninety (90) days after
exercise of the option in paragraph 6(c). The
Purchase Price shall be payable at closing as
follows:
(1) Payment of a down-payment in an
amount equal to the total cash paid by you or
your legal representative in exercising your
option granted pursuant to this Agreement.
(2) Delivery of a promissory note of
the Corporation providing for payment of the
balance of the Purchase Price in One Hundred
Twenty (120) equal amortized installments of
principal and accrued interest, with interest
on the unpaid principal balance accruing at a
rate of six percent (6%) per annum. The
first monthly payment shall be due on the
first day of the first calendar month
following the date of the closing, and
payments shall made monthly thereafter, on
the first business day of each succeeding
month, until the principal amount and accrued
interest thereon are paid in full. The note
shall further provide for acceleration and an
interest rate of ten percent (10%) per annum
in the event of default. All payments shall
be applied first to accrued interest and then
to principal.
(e) All shares issued as a result of this
exercise of the option granted pursuant to this
Agreement shall: (i) bear a legend noting that the
transfer of such shares are subject to the
restrictions set forth herein; and (ii) if the
Corporation's lenders so require, to the same
extent as required of William S. Levine, be
pledged to the Corporation's lenders.
3. Section 7 of the Agreement is deleted and the
following is substituted therefor:
7. FAIR MARKET VALUE. For purposes of the
Agreement, the fair market value of all the common
shares of the Corporation shall be determined as of the
last day of the fiscal year of the Corporation ending
prior to the death, event resulting in permanent
disability or termination of employment ("Valuation
Date"). The fair market value of all common stock of
the Corporation, as of any such Valuation Date, means:
(a) the average of:
(1) the gross revenue of the
Corporation for the Fiscal Year ending on the
Valuation Date multiplied by 3.5, and
(2) ten times Net Operating Income for
the Fiscal Year ending on the Valuation Date.
(b) less the excess, if any, of Debt (as
herein-after defined) of the Corporation over
Assets of the Corporation on the last day of the
Fiscal Year ending on the Valuation Date.
(c) For purposes of the above formula:
(1) "Net Operating Income" means income
of the Corporation before interest charges,
depreciation and amortization and taxes.
(2) "Assets" means the sum of cash,
accounts receivable and the amount that would
be paid to the Employer if all stock options
granted to employees and not yet exercised by
Employees were fully exercised.
(3) "Debt" means debentures, long term
debt, the current portion of long term debt,
accounts payable, accrued liabilities, and
the present value of any outstanding
preferred stock issued by the Employer, as
valued by the outside certified public
accountants of the Employer. Notwithstanding
the foregoing, if debt incurred as the result
of an acquisition of stock or assets of
another entity or entities during a fiscal
year is in excess of $500,000 on the last day
of the fiscal year, the amount considered as
debt shall be an amount determined by
multiplying the amount of such debt on the
last day of the fiscal year by a fraction,
the numerator of which is the number of days
during the fiscal year of the Employer during
which such debt was outstanding and the
denominator of which is 365.
(4) "Corporation" means the Corporation
and its subsidiaries that are consolidated
with the Corporation for financial statement
purposes.
(5) Determination under the above
formula shall be made by the outside
independent certified public accountants in
accordance with generally accepted accounting
principles. The determination of such
outside independent certified public
accountants shall be final and conclusive for
all purposes of the Plan.
(d) Notwithstanding subsections (a) and (b),
if during any 12-month period a total of more than
66-2/3% of the Shares is sold to one or more
individuals or entities who are not Shareholders,
the term Current Value on the next Valuation Date
means the average purchase price, on a per Share
basis, for all of such sold Shares, multiplied by
the number of Shares.
The fair market value of each share of common
stock as of a Valuation Date shall mean the fair market
value of all common stock of the Corporation as defined
above divided by the sum of: (i) all shares of common
stock issued and outstanding on the Valuation Date;
(ii) the number of additional shares that would be
outstanding if all stock options granted to employees
were fully exercised; and (iii) all Incentive Share
Awards theretofore made under the Corporation's
Incentive Share Plan.
4. Section 9 of the Agreement is deleted and the
following is substituted therefor:
9. REORGANIZATION. Subject to any action by the
stockholders of the Corporation required by law, the
number of Shares covered by your option, and the
exercise price per Share in your option shall be
proportionately adjusted for any increase or decrease
in the number of issued shares of the Corporation
resulting from a subdivision or consolidation of shares
or the payment of a stock dividend or any other
increase or decrease in the number of such issued
Shares effective without receipt of consideration by
the Corporation (but only if the foregoing concern the
class of capital stock to which the Shares belong).
Subject to the any action by the stockholders of
the Corporation required by law, if the Corporation
shall be the surviving corporation in any merger of
consolidation, your option shall continue in accordance
with its terms but shall thereafter pertain to and
apply to the securities to which a holder of the number
of Shares subject to the option would have been
entitled.
In the event of a dissolution or liquidation of
the Corporation or a merger or consolidation in which
the Corporation is not the surviving corporation, your
option shall terminate; provided that you shall, in
such event, have the right for twenty (20) days
following receipt of written notice of the proposed
occurrence of such event (which 20-day period shall
expire prior to consummation of such event) to exercise
your option in whole or part.
In the event of a change in the class of capital
stock of the Corporation to which all the Shares
belong, which is limited to a change of all of its
authorized shares with par value into the same number
of shares with a different par value, the shares
resulting from any such change shall be deemed to be
the Shares and the Shares within the meaning of this
agreement.
To the extent that the foregoing adjustments may
be required, such adjustments shall be made by the
Board, whose determination in that respect shall be
final, binding, and conclusive.
Except as otherwise expressly provided in this
Section, you shall have no rights by reason of any
subdivision or consolidation of shares of stock of any
class, the payment of any stock dividend or any other
increase or decrease in the number of shares of stock
of any class, any dissolution, liquidation, merger, or
consolidation involving the Corporation or any spin-
off, sale or other disposition of assets or stock of
any corporation (including, without limitation, the
Corporation) and no issue by the Corporation of shares
of stock of any class, securities convertible into or
other rights to acquire shares of stock of any class,
or any other form of debt or equity shall affect, and
no adjustment by reason thereof shall be required to be
made with respect to, the number or price of shares of
Stock subject to your option.
5. New sections 10 and 11 are inserted as follows:
10. TAX CONSEQUENCES. This option and any
exercise of this option involve significant tax
consequences for you. You and the Corporation agree
that, except as otherwise required by applicable
income tax laws, the amount of ordinary income to be
recognized by you (and the amount of the compensation
deduction to be recognized by the Corporation) for
income tax purposes shall be equal to the excess, if
any, of the fair market value of the Stock above the
exercise price paid therefor by you at the time you
purchase such stock upon exercise of this option. In
any event, you acknowledge that you have consulted
with tax counsel or a tax advisor of your choice and
understand the tax consequences of this option.
11. LIMITED TAX INDEMNITY. Your options granted
in the Agreement were issued in replacement for the
incentive stock options which had earlier been granted
to you totaling 112.5 shares and the 8.01 shares which
you had the right to purchase pursuant to a
Subscription Agreement dated January 21, 1985. Had
the incentive stock options been retained, provided
certain holding period requirements of section 422A of
the Internal Revenue Code of 1986 were met, then upon
exercise of those options you would not have
recognized taxable income to the extent that the fair
market value at the date of exercise exceeds the
option price, and, upon any subsequent sale of the
shares acquired through exercise of the options by
you, the gain on sale would have constituted a capital
gain rather than ordinary income. The Corporation
agrees to pay to you at the time specified below an
amount sufficient (after federal and state income
taxes thereon) to cover (a) any federal and state
income tax liability you actually incur in the year in
which you exercise the options granted in this
Agreement to the extent such actual tax liability
exceeds (b) the tax liability you would have incurred
had the options hereunder been qualifying incentive
stock options under section 422A of the Code, had you
satisfied the holding period requirements of section
422A(a)(1) of the Code, and had you sold the shares
acquired through the Incentive Stock Plan in the same
year in which the options were exercised. Any payment
required under this paragraph 11 shall be remitted by
the Corporation to Moreno within sixty (60) days after
provision by Moreno to the Corporation of a copy of
his federal and state income tax returns actually
filed for the year in which the options were
exercised, and pro forma federal and state income tax
returns prepared under the assumption set forth in
clause (b). All such returns shall be prepared by a
Big 6 accounting firm using generally accepted tax
accounting principles.
6. Paragraphs 10 and 11 are renumbered 12 and 13,
respectively.
7. Paragraph 10 of the Agreement (renumbered 12
hereunder) is deleted and the following is substituted
therefor:
12. GOVERNING LAW. This Agreement and Grant of
Option is governed by, and shall be interpreted
according to, the laws of the State of Arizona.
8. Except as specifically amended hereby, the terms of
the Agreement are ratified and reaffirmed.
Very truly yours,
OUTDOOR SYSTEMS, INC.
By /S/ William S. Levine
----------------------
William S. Levine
Chairman of the Board
Exhibit 4.6
OUTDOOR SYSTEMS, INC.
2810 West Camelback Road
Phoenix, Arizona 85017
As of January 1, 1991
Mr. Wally Kelly
OUTDOOR SYSTEMS, INC.
2810 W. Camelback Road
Phoenix, Arizona 85017
Dear Wally:
I am happy to advise you that you have been selected by the
Board of Directors (the "Board") of Outdoor Systems, Inc. (the
"Corporation"), to receive a nonqualified stock option and that
as of January 1, 1991, (the "Grant Date") you were granted an
option to purchase eighteen and 20/100 (18.20) Shares of the
Corporation's Common Stock (the "Shares") at a price of Twenty-
Three Thousand Nine Hundred Eighty-Three and 87/100 Dollars
($23,983.87) per share upon the terms and conditions set forth in
this letter, subject, however, to your acceptance of the terms
and conditions set forth herein.
The Board has imposed the following additional terms and
conditions relating to your option and its exercise:
1. EXERCISE OF OPTION. You may exercise your option in
accordance with the time schedule set forth below by delivery to
the Corporation (in case of its Secretary, at 2810 West Camelback
Road, Phoenix, Arizona 85017, or to such other person or place as
the Corporation may designate to you in writing) of a written,
irrevocable notice of exercise specifying the number of shares
with respect to which the option is being exercised, together
with payment of the exercise price for those Shares in cash or by
certified check. Any other form of exercise or tender may be
refused by the Corporation, acting through the Board or
otherwise, in its discretion. The option may be exercised for
all or less than all the Shares and may, during its term, be
thereafter exercised as often as you choose for any shares as to
which you might theretofore have exercised your option but have
failed to do so.
2. NONTRANSFERABLE. Your option is not transferable other
than by will or the laws of descent and distribution and is
exercisable, during your lifetime, only by you. You may not
assign or otherwise transfer or encumber your option or any
interest in your option to any person in any way.
3. TERMINATION.
(a) Your option will terminate as to all unexercised
Shares as follows:
(1) You voluntarily terminate your employment
with the Corporation at any time before December 31,
1996.
(2) Upon your death except as modified by subparagraph 3(b)
hereof.
(3) The Corporation rightfully terminates your employment
"for cause" at any time before December 31, 1996. For
purposes of this Agreement, "For Cause" shall include
gross negligence in performing or omitting to perform
your duties, failure to devote substantially all your
working time to the performance of your duties with the
Corporation, embezzlement or misappropriation of
Corporate business opportunities, engaging in a
business in competition with the Corporation,
indictment for any criminal act punishable by more than
three (3) months imprisonment or other detention or by
a fine in excess of $1,000, or the authorization or
commission of any act subjecting the Corporation or its
officers, directors, or employees to criminal
sanctions.
(4) You incur any disability which prevents you
from performing your duties, or substantially impairs
your performance thereof for a consecutive 180 days in
a 12 month period (herein "Permanent Disability").
(b) Notwithstanding the foregoing:
(1) In the event of your termination as an
Employee by reason of Permanent Disability, while an
Employee of the Corporation in good standing, you or
your conservator on your behalf, will have a period of
One Hundred Twenty (120) days after the date of such
termination in which you may exercise the option
granted herein as to any unexercised shares; subject,
however, to the restrictions set forth in paragraph 6
hereof.
(2) In the event of your death while an Employee
of the Corporation in good standing, your legal
representative will have a period of One Hundred Twenty
(120) days after the date of your death to exercise the
option granted herein as to any unexercised shares;
subject, however, to the restrictions set forth in
paragraph 6 hereof.
(3) This option will terminate after the
aforesaid One Hundred Twenty (120) days with respect to
all unexercised shares.
4. SUFFICIENT AUTHORIZED STOCK. The Corporation will
reserve or keep available at all times sufficient common shares
to permit the exercise of your option and all other options
granted or to be granted under the Plan.
5. NON-REGISTRATION. The Shares of the Corporation to be
issued to you upon exercise of your option will not be registered
under the Securities Act of 1933, as amended (the "Act"), or any
applicable state securities laws, in reliance on exemptions
therefrom; and you, by your acceptance of this Agreement,
represent that you are acquiring any shares with respect to which
you exercise your options, for investment and not for resale or
distribution. If in the opinion of counsel satisfactory to the
Corporation no exemption from registration is then available, or
if such issuance is otherwise in violation of applicable law at
the time purchase rights are exercised under this option, the
Corporation shall be under no obligation to issue Shares upon
exercise of your option.
6. RESTRICTIONS ON DISPOSITION OF ACQUIRED STOCK. All
shares acquired by you pursuant to this Agreement shall be
acquired subject to the following restrictions and conditions:
(a) The restrictions set forth in Article II, Section
13, of the Corporation's Bylaws, a copy of which is attached
hereto as Exhibit A, shall apply to all shares issued
pursuant to your exercise of option.
(b) If, on or before December 31, 1996, you should be
terminated "For Cause," as set forth in subparagraphs
3(a)(2) hereof, or you should voluntarily terminate your
employment with the Corporation, you agree that at the
written request of the Corporation you will sell to the
Corporation, or its nominee, and the Corporation will
purchase from you, all Shares in the Corporation acquired by
you pursuant to this grant of option for the option price
and on the terms by which you acquired such shares. The
closing of such sale shall occur within thirty (30) days
after the Corporation's written request set forth above; and
you hereby irrevocably appoint the Secretary of the
Corporation as your attorney-in-fact, to transfer, in such
event, your shares upon the books of the Corporation, upon
payment or tender of payment of the purchase price.
(c) If, on or before December 31, 1996, your
employment is terminated by the Corporation not "For Cause"
as set forth in subparagraph (3)(a)(2) hereof, or if, after
December 31, 1996, you voluntarily terminate your employment
or the Corporation terminates your employment (whether or
not "For Cause"), then you agree that, at the written
request of the Corporation, you will sell to the Corporation
(or its subsidiary Outdoor Systems of Texas, Inc. ("OSTI")),
all Shares acquired by you pursuant to the grant of option,
at the price and on the terms set forth in subparagraph
6(e). If the Corporation fails to exercise the option
granted in this subparagraph by written notice within six
(6) months after the occurrence of the event giving rise to
the right to exercise the option, the Corporation's option
under this paragraph (but not the other restrictions set
forth herein) shall expire.
(d) If you die or become Permanently Disabled (whether
before or after December 31, 1996), then you agree that, at
the written request of the Corporation, you or your guardian
or personal representative, will sell, and the Corporation
agrees that it (or OSTI) shall purchase all Shares acquired
by you pursuant to the grant of option, at the price and on
the terms set forth in subparagraph 6(e). If the
Corporation fails to exercise the option granted in this
paragraph by written notice within six (6) months after the
occurrence of the event giving rise to the right to exercise
the option, the Corporation's option under this subparagraph
(but not the other restrictions set forth herein) shall
expire.
(e) The purchase price for such shares purchased under
subparagraphs (c) or (d) shall be the fair market value of
such shares determined as set forth in paragraph 7 hereof.
The date of closing of such sale shall be set by the
Corporation, but shall: (1) in the event of death or
termination by reason of Permanent Disability, be set for a
period no earlier than thirty (30) days after the time for
exercise of the option set forth in subparagraph 3(b)(1),
3(b)(2) hereof, or One Hundred Fifty (150) days after
termination or death, whichever first occurs; and (ii) in
the case of a termination described in paragraph 6 hereof,
be set for a date not less than thirty (30) nor more than
ninety (90) days after written exercise of the option set
forth in paragraph 6(c). The Purchase Price shall be
payable at closing as follows:
(1) Payment of a down-payment in an equal amount
to the total cash paid by you or your legal
representative in exercising your option granted
pursuant to this Agreement.
(2) Delivery of a promissory note of the
Corporation providing for payment of the balance of the
Purchase Price in One Hundred Twenty (120) equal
amortized installments of principal and accrued
interest, with interest on the unpaid principal balance
accruing at a rate of six percent (6%) per annum. The
first monthly payment shall be due on the first day of
the first calendar month following the date of the
closing, and payments shall be made monthly hereafter,
on the first business day of each succeeding month,
until the principal amount and accrued interest thereon
are paid in full. The note shall further provide for
acceleration and an interest rate of ten (10%) percent
per annum in the event of default. All payments shall
be applied first to accrued interest and then to
principal.
(f) All shares issued as a result of the exercise of
the option granted pursuant to this Agreement shall: (i)
bear a legend noting that the transfer of such shares are
subject to the restrictions set forth herein; and (ii) if
the Corporation's lenders so require, to the same extent as
required of William S. Levine, be pledged to the
Corporation's lenders.
7. FAIR MARKET VALUE. For purposes of the Agreement, the
fair market value of all the common Shares of the Corporation
shall be determined as of the last day of the fiscal year of the
Corporation ending prior to the death, event resulting in
permanent disability, or termination of employment ("Valuation
Date"). The fair market value of all common stock of the
Corporation, as of any such Valuation Date, means:
(a) the average of:
(1) the gross revenue of the Corporation for the
Fiscal Year ending on the Valuation Date multiplied by
3.5, and
(2) ten times Net Operating Income for the Fiscal
Year ending on the Valuation Date.
(b) less the excess, if any, of Debt of the Corporation
over Assets of the Corporation on the last day of the
Fiscal Year ending on the Valuation Date.
(c) For purposes of the above formula:
(1) "Net operating income" means income of the
Corporation before interest charges, depreciation and
amortization and taxes.
(2) "Assets" mean the sum of cash, accounts
receivable and the amount that would be paid to the
Employer if all stock options granted to employees and
not yet exercised by Employees were fully exercised.
(3) "Debt" means debentures, long term debt, the
current portion of long term debt, accounts payable,
accrued liabilities, and the value of any outstanding
preferred stock issued by the Employer, as valued by
the outside certified public accountants of the
Employer. Notwithstanding the foregoing, if debt
incurred as the result of an acquisition of stock or
assets of another entity or entities during a fiscal
year is in excess of $500,000 on the last day of the
fiscal year, the amount considered as debt shall be an
amount determined by multiplying the amount of such
debt on the last day of the fiscal year by a fraction,
the numerator of which is the number of days during the
fiscal year of the Employer during which such debt was
outstanding and the denominator of which is 365.
(4) "Corporation" means the Corporation and its
subsidiaries that are consolidated with the Corporation
for financial statement purposes.
(5) Determinations under the above formula shall
be made by the outside independent certified public
accountants in accordance with generally accepted
accounting principles. The determination of such
outside independent certified public accountants shall
be final and conclusive for all purposes of the Plan.
(d) Notwithstanding subsections (a) and (b), if during
any 12-month period a total of more than 66-2/3% of the
Shares is sold to one or more individuals or entities who
are not Shareholders, the term Fair Market Value on the next
Valuation Date means the average purchase price, on a per
Share basis, for all of such sold Shares, multiplied by the
number of Shares.
The fair market value of each share of common stock as of a
Valuation Date shall mean the fair market value of all common
stock of the Corporation as defined above divided by the sum of:
(i) all shares of common stock issued and outstanding on the
Valuation Date; (ii) the number of additional shares that would
be outstanding if all stock options granted to employees were
fully exercised; and (iii) all Incentive Share Awards theretofore
made under the Corporation's Incentive Share Plan.
8. WITHHOLDING TAXES. You agree to pay to the Corporation
or to make arrangements satisfactory to the Board to pay to the
Corporation, at such time as any income is recognize by you with
respect to this option, any federal, state, or local taxes of any
kind required by law to be withheld on such income by the
Corporation.
9. REORGANIZATION. Subject to any action by the
stockholders of the Corporation required by law, the number of
Shares covered by your option, and the exercise price per Share
in your option shall be proportionately adjusted for any increase
or decrease in the number of issued shares of the Corporation
resulting from a subdivision or consolidation of shares or the
payment of stock dividend or any other increase or decrease in
the number of such issued Shares effected without receipt of
consideration by the Corporation (but only if the foregoing
concern the class of capital stock to which the shares belong).
Subject to any action by the stockholders of the Corporation
required by law, if the Corporation shall be the surviving
corporation in any merger or consolidation, your option shall
continue in accordance with its terms but shall thereafter
pertain to and apply to the securities to which a holder of the
number of Shares subject to the option would have been entitled.
In the event of a dissolution or liquidation of the
Corporation or a merger or consolidation in which the Corporation
is not the surviving corporation, your option shall terminate;
provided that you shall, in such an event, have the right for
twenty (20) days following receipt of written notice of the
proposed occurrence of such event (which 20-day period shall
expire prior to consummation of such event) to exercise your
option in whole or in part.
In the event of a change in the class of capital stock of
the Corporation to which all the Shares belong, which is limited
to a change of all its authorized shares with par value into the
same number of shares along with a different par value, the
shares resulting from any such change shall be deemed to be the
Shares and the Shares within the meaning of this agreement.
To the extent that the foregoing adjustments may be
required, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding, and
conclusive.
Except as otherwise expressly provided in this Section, you
shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any
stock dividend or any other increase or decrease in the number of
shares of stock of any class, any dissolution, liquidation,
merger, or consolidation involving the Corporation or any spin-
off, sale or other disposition of assets or stock of any
corporation (including, without limitation, the Corporation) and
no issue by the Corporation of shares of stock of any class,
securities convertible into or other rights to acquire shares of
stock of any class, or any other form of debt or equity shall
affect, and no adjustment by reason thereof shall be required to
be made with respect to, the number or price of shares of Stock
subject to your option.
10. GOVERNING LAW. This Agreement and Grant of Option is
governed by, and shall be interpreted according to, the laws of
the State of Arizona.
11. TAX CONSEQUENCES. This option and any exercise of this
option involve significant tax consequences for you. You and the
Corporation agree that, except as otherwise required by
applicable income tax laws, the amount of ordinary income to be
recognized by you (and the amount of the compensation deduction
to be recognized by the Corporation) for income tax purposes
shall be equal to the excess, if any, of the fair market value of
the Stock above the exercise price paid therefor by you at the
time you purchase such stock upon exercise of this option or
lapse of the restrictions set forth in paragraph 6(b), whichever
is later. In any event, you acknowledge that you have consulted
with tax counsel or a tax advisor of your choice and understand
the tax consequences of this option.
12. BINDING EFFECT. This agreement will be binding upon
and inure to the benefits of the parties hereto and their
respective heirs, successors, and permitted assigns.
13. ACCEPTANCE. Please acknowledge your receipt of this
letter, together with the materials referred to herein and your
agreement to the terms and conditions of your option as set forth
herein by signing the enclosed copy of this letter and returning
it promptly to the Secretary of the Corporation at 2810 West
Camelback Road, Phoenix, Arizona 85017. Any questions concerning
any matter relating to your stock option should also be addressed
to the Secretary.
Very truly yours,
OUTDOOR SYSTEMS, INC.
By /S/ William S. Levine
ACCEPTED AND AGREED:
/S/ Wally Kelly
Dated as of January 1, 1991
Exhibit 5.1 and Exhibit 23.1
December 7, 1999
Infinity Broadcasting Corporation
40 West 57th Street
New York, N.Y. 10019
Ladies and Gentlemen:
At the request of Infinity Broadcasting Corporation, I am
furnishing this opinion to Infinity for filing with the
Securities and Exchange Commission as Exhibit 5 to Post-Effective
Amendment No. 2 on Form S-8 to be filed by Infinity to its
Registration Statement No. 333-88363 on Form S-4 under the
Securities Act of 1933, as amended.
I have examined, either personally or indirectly through
lawyers who report to me or through other counsel, originals or
copies (certified or otherwise identified to my satisfaction) of
the Agreement and Plan of Merger, as amended, among Infinity,
Outdoor Systems, and Burma Acquisition Corp. (the "Merger
Agreement"), the Restated Certificate of Incorporation and By-
Laws of Infinity, and such other corporate records, agreements,
documents and other instruments, and such certificates or
comparable documents of public officials and of officers and
representatives of Infinity, and have made such inquiries of such
officers and representatives, as I have deemed relevant and
necessary as the basis for the opinions set forth in this letter.
In such examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, the
conformity to original documents of all documents submitted to me
as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to
all questions of fact material to these opinions that have not
been independently established, I have relied upon certificates
or comparable documents of officers and representatives of
Infinity and upon the representations and warranties of Infinity
contained in the Merger Agreement.
Based on the foregoing and subject to the qualifications
stated herein, I am of the opinion that the shares of Infinity
Class A Common Stock to be issued by Infinity as contemplated by
the Registration Statement upon the exercise of stock options or
upon payment of incentive stock awards assumed by Infinity
pursuant to the Merger Agreement in accordance with their terms
and the terms of the following Outdoor Systems plans have been
duly authorized and, when issued against payment of the exercise
price therefor if and as applicable, will be validly issued,
fully paid and nonassessable: (1) Outdoor Systems, Inc. 1996 Non-
Employee Director Stock Option Plan; (2) Outdoor Systems, Inc.
1996 Omnibus Plan; (3) Agreement and Grant of Option dated as of
April 3, 1989, between Outdoor Systems, Inc. and Arturo R.
Moreno, as amended by the First Amendment to Agreement and Grant
of Option dated as of January 1, 1991; and (4) Agreement and
Grant of Option dated as of January 1, 1991, between Outdoor
Systems, Inc. and Wally Kelly.
I express no opinion with respect to the laws of any
jurisdiction other than the corporate laws of the Commonwealth of
Pennsylvania and the federal securities laws of the United
States.
I hereby consent to the use of this opinion letter as an
exhibit to the Post-Effective Amendment No. 2 to the Registration
Statement and to the references to me in Item 5, Part II of such
Registration Statement.
Very truly yours,
/s/ Angeline C. Straka
-------------------------
Angeline C. Straka
Vice President and
Secretary
Exhibit 23.2
[KPMG Letterhead]
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report dated January 27, 1999,
appearing on page 20 of Infinity Broadcasting Corporation's Form
10-K/A and page 40 of Infinity Broadcasting Corporation's Form 10-
K for the year ended December 31, 1998, incorporated by reference
in this Registration Statement.
/s/ KPMG LLP
New York, New York
December 1, 1999
