<PAGE>
As filed with the Securities and Exchange Commission on May 23, 1996
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________________
EVERGREEN MEDIA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-2247099
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
433 EAST LAS COLINAS BOULEVARD 75039
IRVING, TEXAS (Zip Code)
(Address of Principal Executive
Offices)
1995 STOCK OPTION PLAN FOR EXECUTIVE OFFICERS AND KEY EMPLOYEES OF
EVERGREEN MEDIA CORPORATION
EVERGREEN MEDIA CORPORATION
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
BROADCASTING PARTNERS, INC.
1994 LONG TERM INCENTIVE PLAN
(Full Title of Plans)
SCOTT K. GINSBURG
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
433 EAST LAS COLINAS BOULEVARD
IRVING, TEXAS 75039
(Name and address of agent for service)
(214) 869-9020
(Telephone number, including area code, of agent for service)
_________________________
Copy to:
JOHN D. WATSON, JR., ESQ.
LATHAM & WATKINS
1001 PENNSYLVANIA AVENUE, N.W. SUITE 1300
WASHINGTON, D.C. 20004-2505
_________________________
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================================
Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, par value
$.01 per share.................... 1,712,715 $14.54, $18.63, $62,997,501.10 $21,723.28
shares $32.00, $39.38 and
$40.00
================================================================================================================
</TABLE>
/(1)/ For purposes of computing the registration fee only. Pursuant to Rule
457(h) under the Securities Act of 1933, the Proposed Maximum Offering
Price Per Share is based upon: (i) the exercise price per share ($32.00)
of outstanding options for 350,000 shares of Class A Common Stock granted
through the date hereof under the 1995 Stock Option Plan for Executive
Officers and Key Employees of Evergreen Media Corporation (the "1995
Plan"); (ii) exercise prices per share of outstanding options of (x)
$18.63 covering 15,000 shares of Class A Common Stock and (y) $40.00
covering an additional 15,000 shares of Class A Common Stock previously
granted under the Evergreen Media Corporation Stock Option Plan for Non-
Employee Directors (the "Directors Plan"); (iii) the exercise price per
share ($14.54) of outstanding options covering 62,715 shares of Class A
Common Stock which are outstanding under the Broadcasting Partners, Inc.
1994 Long Term Incentive Plan, which options were previously exercisable
for shares of Class A Common Stock of Broadcasting Partners, Inc.; and
(iv) $39.38 per share which represents the average of the high and low
prices of the Class A Common Stock on May 9, 1996 reported on the Nasdaq
National Market for (x) options covering 1,150,000 shares of Class A
Common Stock which may be granted in the future under the 1995 Plan and
(y) options covering 120,000 shares of Class A Common Stock which may be
granted in the future under the Directors Plan.
2
<PAGE>
PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Evergreen Media Corporation, a Delaware
Corporation, (the "Company") are incorporated as of their respective dates in
this Registration Statement on Form S-8 (the "Registration Statement") by
reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1995;
2. The Company's Current Report on Form 8-K pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 filed on February 1, 1996; and
3. The description of the Company's Common Stock contained in the section
entitled "Description of Class A Common Stock" contained in the Prospectus of
the Company filed with the Commission on March 23, 1993 (No. 33-60036) and
incorporated by reference into the Registration Statement on Form 8-A under the
Securities Exchange Act of 1934, as amended, of the Company filed with the
Commission on April 19, 1993 (No. 0-215-70).
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold are incorporated by reference in this
Registration Statement and are a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall 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.
Not applicable.
3
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a
Delaware corporation to indemnify any person who is, 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 such corporation) by reason of the fact that
such person is or was an officer or director of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include 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, provided that he acted in good faith and in a manner he
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 his conduct was unlawful. A Delaware corporation
may indemnify officers and directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which he actually and reasonably incurred in
connection therewith.
The Company's Amended and Restated Certificate of Incorporation
provides that no director of the Company shall be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
The Company's Restated Bylaws provide that the Company shall 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 Company) by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another Company,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a pleas of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
The Restated Bylaws also provide that the Company shall 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
Company to procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another Company, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and except that no such 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 Company unless and only to the extent that the
court of Chancery of Delaware 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 such Court
of Chancery or such other court shall deem proper.
4
<PAGE>
To the extent that a director, officer, employee or agent of the
Company hall be successful on the merits or otherwise in defense of any action,
suit or proceeding referred to above, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
The Restated Bylaws further provide that any indemnification (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in the bylaws. Such determination
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceedings, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the Company 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 he is not entitled to be indemnified by
the Company as authorized in the bylaws. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
The Board of Directors may authorize, by a vote of majority of a
quorum of the Board of Directors, the Company to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another company, partnership, joint venture, trust
or other enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether or not
the Company would have the power to indemnify him against such liability under
the provisions of the bylaws.
The Restated Bylaws also provide that the indemnification and
advancement of expenses provided by, or granted pursuant to the bylaws shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this Registration
Statement, which are incorporated herein:
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
---------- ----------------------
<C> <S>
4.1 Restated Certificate of Incorporation of Evergreen Media
Corporation, dated November 6, 1992 (incorporated by
reference to Exhibit 3.1A to the Company's Registration
Statement on Form S-1, as amended (No. 33-60036)).
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of Evergreen Media Corporation (incorporated
by reference to Exhibit 3.1B to the Company's Registration
Statement on Form S-1, as amended (No. 33-69752)).
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
---------- ----------------------
<C> <S>
4.3 Restated Bylaws of Evergreen Media Corporation
(incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1, as amended
(No. 33-60036)).
4.4 Specimen Class A Common Stock certificate (incorporated by
reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1, as amended (No. 33-60036)).
4.5 1995 Stock Option Plan for Executive Officers and Key
Employees of Evergreen Media Corporation (incorporated by
reference to Exhibit 10.28 to the Company's Quarterly Report
on Form 10-Q, filed on May 15, 1996).
4.6 Evergreen Media Corporation Stock Option Plan for Non-
Employee Directors (incorporated by reference to Annex E
contained in Amendment No. 1 to the Company's Registration
Statement on Form S-4 (No. 33-89838)).
*4.7 Broadcasting Partners, Inc. 1994 Long Term Incentive Plan.
*4.8 Form of Option Agreement utilized in connection with the
1995 Stock Option Plan for Executive Officers and Key
Employees of Evergreen Media Corporation.
*4.9 Form of Option Agreement utilized in connection with the
Evergreen Media Corporation Stock Option Plan for Non-
Employee Directors.
*5.1 Opinion of Latham & Watkins
*23.1 Consent of Latham & Watkins (included as part of their
opinion listed as Exhibit 5.1).
*23.2 Consent of KPMG Peat Marwick LLP
*25.1 Powers of Attorney (page 8)
</TABLE>
____________________
* Filed herewith.
The Company hereby agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Commission upon request.
ITEM 9. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
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 the registrant of expense incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted against the
registrant by such director, officer or controlling person in connection with
the securities being registered, the registrant 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.
6
<PAGE>
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
-------- -------
apply if the information required to be included in a post-effective
amendment by these paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities and Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) 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 offering thereof.
(3) 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Irving, Texas, on May 23, 1996.
EVERGREEN MEDIA CORPORATION
By: /s/ Matthew E. Devine
---------------------
Matthew E. Devine
Senior Vice President
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Matthew
E. Devine as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in his name, place and
stead, in any and all capacities, to sign any or all further amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Scott K. Ginsburg Chairman of the Board and May 23, 1996
- --------------------------- Chief Executive Officer
Scott K. Ginsburg
/s/ James E. de Castro President, Chief Operating May 23, 1996
- --------------------------- Officer and Director
James E. de Castro
/s/ Matthew E. Devine Senior Vice President, Treasurer, May 23, 1996
- --------------------------- Chief Financial Officer, Chief
Matthew E. Devine Accounting Officer and Director
/s/ Joseph M. Sitrick Director May 23, 1996
- ---------------------------
Joseph M. Sitrick
/s/ Thomas J. Hodson Director May 23, 1996
- ---------------------------
Thomas J. Hodson
/s/ Perry J. Lewis Director May 23, 1996
- ---------------------------
Perry J. Lewis
/s/ Eric L. Bernthal Director May 23, 1996
- ---------------------------
Eric L. Bernthal
/s/ Kenneth J. O'Keefe Director May 23, 1996
- ---------------------------
Kenneth J. O'Keefe
</TABLE>
8
<PAGE>
EXHIBIT 4.7
BROADCASTING PARTNERS, INC.
1994 LONG TERM INCENTIVE PLAN
SECTION 1. Purpose. The purposes of this Broadcasting Partners, Inc. 1994
-------
Long Term Incentive Plan (the "Plan") are to encourage selected employees of
Broadcasting Partners, Inc. (together with any successor thereto, the "Company")
and its Affiliates (as defined below) to acquire a proprietary interest in the
growth and performance of the Company, to generate an increased incentive to
contribute to the Company's future success and prosperity, thus enhancing the
value of the Company for the benefit of its shareholders, and to enhance the
ability of the Company and its Affiliates to attract and retain exceptionally
qualified individuals upon whom, in large measure, the sustained progress,,
growth, and profitability of the Company depend.
SECTION 2. Definitions. As used in the Plan, the following terms shall
-----------
have the meanings set forth below:
"Affiliate" shall mean (i) any entity that, directly or through one or more
intermediaries, is controlled by the Company and (ii) any entity in which the
Company has a significant equity interest, as determined by the Committee.
"Award" shall mean any Option, Stock Appreciation Right, Restricted Security,
Performance Award, Dividend Equivalent, or Other Stock-Based Award granted under
the Plan.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award granted under the Plan.
"Board" shall mean the Board of Directors of the Company.
"Cause", as used in connection with the termination of a Participant's
employment, shall mean (i) with respect to any Participant employed under a
written contract with the Company or an Affiliate of the Company which contract
includes a definition of "cause," "cause" as defined in such contract and (ii)
with respect to any other Participant, the failure to perform adequately in
carrying out such Participant's employment responsibilities, including any
directives from the Board, or engaging in such behavior in his personal or
business life, as to lead the Committee in its reasonable judgment to determine
that it is in the best interests of the Company to terminate his employment.
"Class A Common" shall mean the Class A Common Stock of the Company, $.01 par
value.
"Class B Common" shall mean the Class B Common Stock of the Company, $.01 par
value.
<PAGE>
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder.
"Committee" shall mean the Compensation Committee or any other committee of
the Board designated by the Board to administer the Plan and composed of not
less than two outside directors, as described in Section 162(m) of the Code,
each of whom, to the extent necessary to comply with Rule 16b-3 only, is a
"disinterested person" within the meaning of Rule 16b-3.
"Common Shares" shall mean any or all, as applicable, of the Class A Common or
the Class B Common and such other securities or property as may become the
subject of Awards, or become subject to Awards, pursuant to an adjustment made
under Section 4(b) of the Plan and any other securities of the Company or any
Affiliate or any successor that may be so designated by the Committee.
"Dividend Equivalent" shall mean any right granted under Section 6(e) of the
Plan.
"Employee" shall mean any employee of the Company or of any Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean (A) with respect to any property other than the
Common Shares, the fair market value of such property determined by such methods
or procedures as shall be established from time to time by the Committee; and
(B) with respect to the Common Shares, as of any date, (i) the last reported
sales price on the New York Stock Exchange, or, if not reported for the New York
Stock Exchange on the Composite Tape, or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked quotations
on the New York Stock Exchange; (ii) if the Common Shares are not listed on the
New York Stock Exchange or no such quotations are available, the closing price
of the Common Shares as reported by the National Market System, or similar
organization, or, if no such quotations are available, the average of the high
bid and low asked quotations as quoted in the National Association of Securities
Dealers' Automated Quotation System, or similar organization; or (iii) in the
event that there shall be no public market for the Common Shares, the fair
market value of the Common Shares as determined (which determination shall be
conclusive) in good faith by the Committee, based upon the value of the Company
as a going concern, as if such Common Shares were publicly owned stock, but
without any discount with respect to minority ownership.
"Good Reason", as used in connection with the termination of a Participant's
employment, shall mean (i) with respect to any Participant employed under a
written employment contract with the Company or an Affiliate of the Company,
"good reason" as defined in such written employment agreement or, if such
contract contains no such definition, a material breach by the Company of such
written employment agreement or (ii) with respect to any other Participant, a
failure by the Company to pay such Participant any amount otherwise vested and
2
<PAGE>
due and a continuation of such failure for 30 business days following notice to
the Company thereof.
"Incentive Stock Option" shall mean an option granted under Section 6 (a) of
the Plan that is intended to meet the requirements of Section 422 of the Code or
any successor provision thereto.
"Non-Qualified Stock Option" shall mean an option granted under Section 6 (a)
of the Plan that is not intended to be an Incentive Stock Option. Any stock
option granted by the Committee which is not designated an Incentive Stock
Option shall be deemed a Non-Qualified Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock Option.
"Other Stock-Based Award" shall mean any right granted under Section 6(f) of
the Plan.
"Participant" shall mean any Employee granted an Award under the Plan.
"Performance Award" shall mean any right granted under Section 6(d) of the
Plan.
"Person" shall mean any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, or government or
political subdivision thereof.
"Released Securities" shall mean securities that were Restricted Securities
but with respect to which all applicable restrictions have expired, lapsed or
been waived in accordance with the terms of the Plan or the applicable Award
Agreement.
"Restricted Securities" shall mean any Common Share granted under Section 6
(c) of the Plan, any right granted under Section 6(c) of the Plan, that is
denominated in Common Shares or any other Award under which issued and
outstanding Common Shares are held subject to certain restrictions.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and Exchange
Commission under the Exchange Act, or any successor rule or regulation thereto
as in effect from time to time.
"16b-3 Plan" shall mean the Plan in the event that any Employee becomes
subject to Section 16 of the Exchange Act with respect to Common Shares.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock Appreciation Right" shall mean any right granted under Section 6 (b) of
the Plan.
3
<PAGE>
"Stockholders Agreements" shall mean collectively (a) the Stockholders and
Registration Rights Agreement dated as of September 1, 1988 among the Company
and the management, investors and other entities listed on the signature pages
and (b) the Agreement and Consent dated as of June 2, 1993 among the Company and
the Stockholders listed on its signature pages thereof, and any amendments
thereto as successor agreements.
SECTION 3. Administration. The Plan shall be administered by the
--------------
Committee. Subject to the terms of the Plan and applicable law, and in addition
to other express powers and authorizations conferred on the Committee by the
Plan, the Committee shall have full power and authority to: (i) designate
Participants; (ii) determine the type or types of Awards to be granted to an
eligible Employee under the Plan; (iii) determine the number and classification
of Common Shares to be covered by (or with respect to which payments, rights, or
other matters are to be calculated in connection with) Awards; (iv) determine
the terms and conditions of any Award; (v) determine whether, to what extent,
and under what circumstances Awards may be settled or exercised in cash, Common
Shares, other securities, other Awards, or other property, or canceled,
forfeited, or suspended, and the method or methods by which Awards may be
settled, exercised, canceled, forfeited, or suspended; (vi) determine
requirements for the vesting of Awards or performance criteria to be achieved in
order for Awards to vest; (vii) determine whether, to what extent, and under
what circumstances cash, Common Shares, other securities, other Awards, other
property, and other amounts payable with respect to an Award under the Plan
shall be deferred either automatically or at the election of the holder thereof
or of the Committee; (viii) interpret and administer the Plan and any instrument
or agreement relating to, or Award made under, the Plan; (ix) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan; and (x) make any
other determination and take any other action that the Committee deems necessary
or desirable for the administration of the Plan. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Award shall be within
the sole discretion of the Committee, may be made at any time and shall be
final, conclusive, and binding upon all Persons, including the Company, any
Affiliate, any Participant, any holder or beneficiary of any Award, any
shareholder, and any Employee. Notwithstanding the foregoing the maximum number
of Awards which may be granted to any one participant under this Plan shall not
exceed 150,000 Common Shares, subject to the adjustments provided in Section
4(b) hereof and (b) no Awards under this Plan shall be granted after December
31, 2004.
SECTION 4. Common Shares Available for Awards.
----------------------------------
(a) Common Shares Available. Subject to adjustment as provided in Section
-----------------------
4(b):
(i) Calculation of Number of Common Shares Available. The number of
------------------------------------------------
Common Shares available for granting Awards under the Plan shall be
700,000, any or all of which may be or may be based on Class A Common,
Class B Common, any
4
<PAGE>
other security which becomes the subject of Awards, or any combination
thereof. Initially 700,000 shares of Class A Common and 700,000 shares of
Class B Common shall be reserved for Awards hereunder. However, an award
based on one class of common stock shall also reduce an identical number of
shares of the other class of common stock reserved for Awards so that only
Awards based on 700,000 Common Shares shall be available under this Plan,
subject to the adjustments provided for in Section 4 (b). Further, if,
after the effective date of the Plan, any Common Shares covered by an Award
granted under the Plan, or to which such an Award relates, are forfeited,
or if an Award otherwise terminates or is canceled without the delivery of
Shares or of other consideration, then the Common Shares covered by such
Award, or to which such Award relates, or the number of Common Shares
otherwise counted against the aggregate number of Common Shares available
under the Plan with respect to such Award, to the extent of any such
forfeiture, termination or cancellation, shall again be, or shall become,
available for granting Awards under the Plan.
(ii) Accounting for Awards. For purposes of this Section 4,
---------------------
(A) if an Award (other than a Dividend Equivalent) is
denominated in or based upon Common Shares, the number of Common
Shares covered by such Award, or to which such Award relates, shall be
counted on the date of grant of such Award against the aggregate
number of Common Shares available for granting Awards under the Plan
and against the maximum number of Awards available to any participant;
and
(B) Dividend Equivalents and Awards not denominated in Common
Shares may be counted against the aggregate number of Common Shares
available for granting Awards under the Plan and against the maximum
number of Awards available to any participant in such amount and at
such time as the Committee shall determine under procedures adopted by
the Committee consistent with the purposes of the Plan;
provided, however, that Awards that operate in tandem with (whether granted
-------- -------
simultaneously with or at a different time from), or that are substituted
for, other Awards may be counted or not counted under procedures adopted by
the Committee in order to avoid double counting. Any Common Shares that
are delivered by the Company, and any Awards that are granted by, or become
obligations of, the Company, through the assumption by the Company or an
Affiliate of, or in substitution for, outstanding awards previously granted
by an acquired company shall, in the case of Awards granted to Employees
who are officers or directors of the Company for purposes of Section 16 of
the Exchange Act, be counted against the Common Shares available for
granting Awards under the Plan.
(iii) Sources of Common Shares Deliverable Under Awards. Any Common
-------------------------------------------------
5
<PAGE>
Shares delivered pursuant to an Award may consist, in whole or in part, of
authorized and unissued Common Shares or of treasury Common Shares.
(b) Adjustments. In the event that the Committee shall determine that any
-----------
dividend or other distribution (whether in the form of cash, Common Shares,
other securities, or other property), recapitalization, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, or exchange of Common Shares or other securities of the
Company, issuance of warrants or other rights to purchase Common Shares or other
securities of the Company, or other similar corporate transaction or event
affects the Common Shares such that an adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number and kind of common shares (or other securities or property) which
thereafter may be made the subject of Awards, (ii) the number and kind of Common
Shares (or other securities or property) subject to outstanding Awards, and
(iii) the grant or exercise price with respect to any Award or, if deemed
appropriate, make provision for a cash payment to the holder of an outstanding
Award; provided, however, that the number of Common Shares subject to any Award
denominated in Common Shares shall always be a whole number.
If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation, or if
the Company sells or otherwise disposes of substantially all its assets to
another corporation and is liquidated while unexercised Options remain
outstanding under the Plan, (i) subject to the provisions of clause (iii) below,
after the effective date of such merger, consolidation or sale and liquidation,
as the case may be, each holder of an outstanding Award shall be entitled, to
receive, in lieu of Common Shares, shares of such stock or other securities or
property as the holders of shares of such class of Common Shares received
pursuant to the terms of the merger, consolidation or sale; (ii) the Committee
may waive any limitations imposed pursuant to Subsection 6(a)(ii) hereof so that
all Awards, from and after a date prior to the effective date of such merger,
consolidation, or sale and liquidation, as the case may be, specified by the
committee, shall be exercisable in full (except that no Option may be exercised
within six (6) months of the date of grant); and (iii) all outstanding Awards
may be canceled by the Committee as of the effective date of any such merger,
consolidation or sale and liquidation provided that (x) notice of such
cancellation shall be given to each holder of an Option and (y) each holder of
an Award shall have the right to exercise such Award in full (except options
which were granted within six (6) months of the date of cancellation) during a
30-day period preceding the effective date of such merger, consolidation or sale
and liquidation.
SECTION 5. Eligibility. Any Employee, including any officer or employee-
-----------
director of the Company or of any Affiliate, who is not a member of the
Committee shall be eligible to be designated a Participant.
6
<PAGE>
SECTION 6. Awards.
------
(a) Options. The Committee is hereby authorized to grant to eligible
-------
Employees options to purchase Common Shares (each, an "Option") which shall
contain the following terms and conditions and with such additional terms and
conditions, in either case not inconsistent with the provisions of the Plan, as
the Committee shall determine:
(i) Exercise Price. The purchase price per Common Share purchasable
--------------
under an option shall be determined by the Committee; provided, however,
-------- -------
that such purchase price with respect to an Incentive Stock Option shall
not be less than one hundred percent (100%) of the Fair Market Value of a
Common Share on the date of grant of such option, or such other price as
required under Subsection 6(a)(iv) hereof.
(ii) Time and Method of Exercise. Subject to the terms of Section 6
---------------------------
(a) (iii), the Committee shall determine the time or times at which an
option may be exercised in whole or in part, and the method or methods by
which, and the form or forms (including, without limitation, cash, Common
Shares, outstanding Awards, or other property, or any combination thereof,
having a Fair Market Value on the exercise date equal to the relevant
exercise price) in which, payment of the exercise price with respect
thereto may be made or deemed to have been made; provided that, unless
otherwise specified in the applicable Award Agreement and subject to the
terms of Section 6 (a) (iii), no Option may be exercised until the
expiration of one year of continued employment of the Participant by the
Company or an Affiliate or both immediately following the date the Option
was granted.
(iii) Exercisability Upon Death, Retirement and Termination of
--------------------------------------------------------
Employment. Subject to the condition that no Option may be exercised in
----------
whole or in part after the expiration of the Option period specified in the
applicable Award Agreement:
(A) Subject to the terms of paragraph (D) below, upon the death
of a Participant while employed or within 3 months of retirement or
disability as defined in paragraph (B) below, the person or persons to
whom such Participant's rights with respect to any Option held by such
Participant are transferred by will or the laws of descent and
distribution may, prior to the expiration of the earlier of: (1)
the outside exercise date determined by the Committee at the time of
granting the Option, or (2) nine months after such Participant's
death, purchase any or all of the Common Shares with respect to which
such Participant was entitled to exercise such Option immediately
prior to such Participant's death, and any options not so exercisable
will lapse on the date of such Participant's death;
(B) Subject to the terms of paragraph (D) below, upon
termination of a
7
<PAGE>
Participant's employment with the Company (x) as a result of
retirement pursuant to a retirement plan of the Company or an
Affiliate or disability (as determined by the Committee) of such
Participant, (y) by the Company other than for Cause, or (z) by the
Participant with Good Reason, such Participant may, prior to the
expiration of the earlier of: (1) the outside exercise date determined
by the Committee at the time of granting the Option, or (2) three
months after the date of such termination, purchase any or all of the
Common Shares with respect to which such Participant was entitled to
exercise any options immediately prior to such termination, and any
Options not so exercisable will lapse on such date of termination;
(C) Subject to the terms of paragraph (D) below, upon
termination of a Participant's employment with the Company under any
circumstances not described in paragraphs (A) or (B) above, such
Participant's Options shall be canceled to the extent not theretofore
exercised;
(D) Upon (i) the death of the Participant, or termination of the
Participant's employment with the Company (x) by the Company other
than for Cause (y) by the Participant with Good Reason or (z) as a
result of retirement or disability as defined in paragraph (B) above,
the Company shall have the right to cancel all of the Options such
Participant was entitled to exercise at the time of such death or
termination (subject to the terms of paragraphs (A) or (B) above) for
a payment in cash equal to the excess, if any, of the Fair Market
Value of one Common Share on the date of death or termination over the
exercise price of such Option for one Common Share times the number of
Common Shares subject to the Option and exercisable at the time of
such death or termination; and
(E) Upon expiration of the respective periods set forth in each
of paragraphs (A) through (C) above, the options of a Participant who
has died or whose employment has been terminated shall be canceled to
the extent not theretofore canceled or exercised.
(iv) Incentive Stock Options. The following provisions shall apply
-----------------------
only to Incentive Stock Options granted under the Plan:
(A) No Incentive Stock Option shall be granted to any eligible
Employee who, at the time such Option is granted, owns, within the
meaning of Section 422 of the Code, stock possessing more than ten
percent (10%) of the total combined voting power of all classes of
Common Shares of the Company or any of its affiliates, except that
such an option may be granted to such an employee if at the time the
Option is granted the option price is at least one hundred ten percent
(110%) of the fair market value of the Common Shares (determined in
8
<PAGE>
accordance with Section 2) subject to the Option, and the Option by
its terms is not exercisable after the expiration of five (5) years
from the date the Option is granted;
(B) To the extent that the aggregate fair market value of stock
with respect to which Incentive Stock options (without regard to this
subsection) are exercisable for the first time by any individual
during any calendar year (under all plans of the Company and its'
affiliates) exceeds $100,000, such Options shall be treated as options
which are not Incentive Stock Options. This subsection shall be
applied by taking options into account in the order in which they were
granted. If some but not all Options granted on any one day are
subject to this subsection, then such options shall be apportioned
between Incentive Stock Option and Non-Qualified Stock Option
treatment in such manner as the Committee shall determine. For
purposes of this subsection, the fair market value of any Common
Shares shall be determined, in accordance with Section 2, as of the
date the option with respect to such Common Shares is granted.
(C) No Incentive Stock Option granted under the Plan shall be
exercisable any earlier than one (1) year from the date of grant.
(b) Stock Appreciation Rights. The Committee is hereby authorized to grant
-------------------------
to eligible Employees "Stock Appreciation Rights." Each Stock Appreciation
Right shall consist of a right to receive the excess of (i) the Fair Market
Value of one Common Share on the date of exercise or, if the Committee
shall so determine in the case of any such right other than one related to
any Incentive Stock Option, at any time during a specified period before or
after the date of exercise over (ii) the grant price of the right as
specified by the Committee, which shall not be less than one hundred
percent (100%) of the Fair Market Value of one Common Share on the date of
grant of the Stock Appreciation Right (or, if the Committee so determines,
in the case of any Stock Appreciation Right retroactively granted in tandem
with or in substitution for another Award, on the date of grant of such
other Award). Subject to the terms of the Plan and any applicable Award
Agreement, the grant price, term, methods of exercise, methods of
settlement, and any other terms and conditions of any Stock Appreciation
Right granted under the Plan shall be as determined by the Committee. The
Committee may impose such conditions or restrictions on the exercise of any
Stock Appreciation Right as it may deem appropriate.
(c) Restricted Securities.
---------------------
(i) Issuance. The Committee is hereby authorized to grant to eligible
--------
Employees "Restricted Securities," which shall consist of the right to
receive, by purchase or otherwise, Common Shares which are subject to such
restrictions as the Committee may
9
<PAGE>
impose (including, without limitation, any limitation on the right to vote
such Common Shares or the right to receive any dividend or other right or
property) which restrictions may lapse separately or in combination at such
time or times, in such installments or otherwise, otherwise, as the
Committee may deem appropriate.
(ii) Registration. Restricted Securities granted under the Plan may be
------------
evidenced in such manner as the Committee may deem appropriate, including,
without limitation, book-entry registration or issuance of a stock
certificates or certificates. In the event any stock certificate is issued
in respect of Restricted Securities granted under the Plan, such
certificate shall be registered in the name of the Participant and shall
bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such Restricted Securities.
(iii) Forfeiture. Except as otherwise determined by the Committee, upon
----------
termination of a Participant's employment for any reason during the
applicable restriction period, all of such Participant's Restricted
Securities which had not become Released Securities by the date of
termination of employment shall be forfeited and reacquired by the Company;
provided, however, that the Committee may, when it finds that a waiver
-------- -------
would be in the best interests of the Company, waive in whole or in part
any or all remaining restrictions with respect to such Participant's
Restricted Securities. Unrestricted Common Shares, evidenced in such
manner as the Committee shall deem appropriate, shall be issued to the
holder of Restricted Securities promptly after such Restricted Securities
become Released Securities.
(d) Performance Awards. The Committee is hereby authorized to grant
------------------
to eligible Employees "Performance Awards." Each Performance Award shall
consist of a right, (i) denominated or payable in cash, Common Shares,
other securities or other property (including, without limitation,
Restricted Securities), and (ii) which shall confer on the holder thereof
rights valued as determined by the Committee and payable to, or exercisable
by, the holder of the Performance Award, in whole or in part, upon the
achievement of such performance goals during such performance periods as
the Committee shall establish. Subject to the terms of the Plan and any
applicable Award Agreement, the performance goals to be achieved during any
performance period, the length of any performance period, the amount of any
Performance Award granted, the termination of a Participant's employment
and the amount of any payment or transfer to be made pursuant to any
Performance Award shall be determined by the Committee and by the other
terms and conditions of any Performance Award. The Committee shall issue
performance goals prior to the commencement of the performance period to
which such performance goals pertain.
(e) Dividend Equivalents. The Committee is hereby authorized to
--------------------
grant to eligible Employees "Dividend Equivalents." Each Dividend
Equivalent shall consist of a right pursuant to which the holder thereof
shall he entitled to receive payments
10
<PAGE>
equivalent to dividends with respect to a number of Common Shares
determined by the Committee, and the Committee may provide that such
amounts (if any) shall be deemed to have been reinvested in additional
Shares or otherwise reinvested. Subject to the terms of the Plan and any
applicable Award Agreement, Dividend Equivalents may have such terms and
conditions as the Committee shall determine.
(f) Other Stock-Based Awards. The Committee is hereby authorized to
------------------------
grant to eligible Employees "Other Stock Based Awards." Each Other Stock-
Based Award shall consist of a right (i) which is other than an Award or
right described in Section 6 (a), (b), (c), (d) or (e) above and (ii) which
is denominated or payable in, valued in whole or in part by reference to,
or otherwise based on or related to, Common Shares (including, without
limitation, securities convertible into Common Shares) as are deemed by the
Committee to be consistent with the purposes of the Plan, provided,
however, that such right shall comply, to the extent deemed desirable by
the Committee, with Rule 16b-3 and applicable law. Subject to the terms of
the Plan and any applicable Award Agreement, the Committee shall determine
the terms and conditions of Other Stock-Based Awards. Common Shares or
other securities delivered pursuant to a purchase right granted under this
Section 6(f) shall be purchased for such,consideration, which may be paid
by such method or methods and in such form or forms, including, without
limitation, cash, Common Shares, other securities, other Awards, or other
property, or any combination thereof, as the Committee shall determine.
(g) General.
-------
(i) No Cash Consideration for Awards. Awards may be granted for no
--------------------------------
cash consideration or for such minimal cash consideration as may be
required by applicable law.
(ii) Awards May Be Granted Separately or Together. Awards may, in
--------------------------------------------
the discretion of the Committee, be granted either alone or in addition to,
in tandem with, or in substitution for any other Award, except that in no
event shall an Incentive Stock Option be granted together with a Non-
Qualified Stock Option in such a manner that the exercise of one option
affects the right to exercise the other. Awards granted in addition to or
in tandem with other Awards may be granted either at the same time as or at
a different time from the grant of such other awards.
(iii) Forms of Payment Under Awards. Subject to the terms of the
-----------------------------
Plan and of any applicable Award Agreement, payments or transfers to be
made by the Company or an Affiliate upon the grant, exercise or payment of
an Award may be made in such form or forms as the Committee shall
determine, including, without limitation, cash, Common Shares, other
securities, other Awards, or other property, or any combination thereof,
and may be made in a single payment or transfer, in installments, or on a
11
<PAGE>
deferred basis, in each case in accordance with rules and procedures
established by the Committee. Such rules and procedures may include
without limitation, provisions for the payment or crediting of reasonable
interest on installment or deferred payments or the grant or crediting of
Dividend Equivalents in respect of installment or deferred payments. In
accordance with the above, the Committee may elect (i) to pay a Participant
(or such Participant's permitted transferee) upon the exercise of an Option
in whole or in part, in lieu of the exercise thereof and the delivery of
Common Shares thereunder, an amount of cash equal to the excess,if any, of
the Fair Market Value of one Common Share on the date of such exercise over
the exercise price of such option for one Common Share times the number of
Common Shares subject to the Option or portion thereof or (ii) to settle
other stock denominated Awards in cash. If the total amount of any cash
payment referred to in this paragraph exceeds $50,000, the Company may, at
its sole discretion, elect to make such payment in up to five equal annual
installments (by wire transfer or certified or cashier's check). To make
such an election, the Company shall deliver to the Participant (or such
Participant's permitted transferee, as applicable) the first installment
and a promissory note substantially in the form of Exhibit A hereto on the
date of exercise.
(iv) Limits on Transfer of Awards.
----------------------------
(A) No award (other than Released Securities), and no right
under any such Award, may be assigned, alienated, pledged, attached, sold
or otherwise transferred or encumbered by a Participant otherwise than by
will or by the laws of descent and distribution (or, in the case of
Restricted Securities, to the Company) and any such purported assignment,
alienation, pledge, attachment, sale or other transfer or encumbrance shall
be void and unenforceable against the Company or any Affiliate.
(B) Each award, and each right under any Award, shall be
exercisable, during the Participant's lifetime only by the Participant or
if permissible under applicable law, by the Participant's guardian or legal
representative.
(v) Terms of Awards. The term of each Award shall be for such period
---------------
as may be determined by the Committee; provided, however, that in no event
-------- -------
shall the term of any Incentive Stock Option exceed a period of ten years
from the date of its grant.
(vi) Rule 16b-3 Six-Month Limitations. To the extent required in
--------------------------------
order to maintain the exemption provided under Rule 16b-3 only, any equity
security offered pursuant to the Plan must be held for at least six months
after the date of grant, and with respect to any derivative security issued
pursuant to the Plan, at least six months must elapse from the date of
acquisition of such derivative security to the date of disposition of the
derivative security (other than upon exercise or conversion) or its
underlying equity security. Terms used in the preceding sentence shall,
for the purposes
12
<PAGE>
of such sentence only, have the meanings, if any, assigned or attributed to
them under Rule 16b-3.
(vii) Common Share Certificates. All certificates for Common Shares
-------------------------
delivered under the Plan pursuant to any Award of the exercise thereof
shall be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the Plan or the rules, regulations, and
other requirements of the Securities and Exchange Commission, any stock
exchange upon which such Common Shares are then listed, and any applicable
Federal or state securities laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to
such restrictions.
(viii) Delivery of Common Shares or other Securities and Payment by
------------------------------------------------------------
Participant of Consideration. No Common Shares or other securities shall
----------------------------
be delivered pursuant to any Award until payment in full of any amount
required to be paid pursuant to the Plan or the applicable Award Agreement
is received by the Company. Such payment may be made by such method or
methods and in such form or forms as the Committee shall determine,
including, without limitation cash, Common Shares, other securities, other
Awards or other property, or any combination thereof; provided that the
combined value, as determined by the Committee, of all cash and cash
equivalents and the Fair Market Value of any such Common Shares or other
property so tendered to the Company, as of the date of such tender, is at
least equal to the full amount required to be paid pursuant to the-Plan or
the applicable Award Agreement to the Company.
SECTION 7. Other Agreements. (a) No Common Shares shall be delivered to
----------------
any Employee (or to any of such Employee's transferees permitted pursuant to
Section 6 (g) (iv) ) who is not a party to the Stockholders Agreements unless
such Employee (or such permitted transferee) shall have executed and delivered
to the Company, as a condition to such Employee's (or such permitted
transferees) acquisition of such Common Shares, an instrument satisfactory to
the Company confirming that, except as otherwise provided in the Plan, such
Employee (or such permitted transferee) takes such Common Shares subject to, and
agrees to be bound by, all the terms and conditions of the Stockholders
Agreements, to the extent such agreements remain in effect.
(b) For purposes of the Stockholders Agreement, any Common Shares
received under the Plan shall be considered Common Stock.
SECTION 8. Amendments; Adjustments and Termination. Except to the extent
---------------------------------------
prohibited by applicable law and unless otherwise expressly provided in an Award
Agreement or in the Plan:
(a) Amendments to the Plan. The Board may amend, alter, suspend,
----------------------
13
<PAGE>
discontinue, or terminate the Plan without the consent of any shareholder,
Participant, other holder or beneficiary of an Award, or other Person; provided,
however, that, subject to the Company's rights to adjust Awards under Sections 8
(c) and (d), any amendment, alteration, suspension, discontinuation, or
termination that would impair the rights of any Participant, or any other holder
or beneficiary of any Award theretofore granted, shall not to that extent be
effective without the consent of such Participant, other holder or beneficiary
of an Award, as the case may be; and provided further, however, that
notwithstanding any other provision of the Plan or any Award Agreement, without
the approval of the shareholders of the Company no such amendment, alteration,
suspension, discontinuation, or termination shall be made that would:
(i) increase the total number of Common Shares available for Awards
under the Plan, except as provided in Section 4 hereof; or
(ii) otherwise cause the Plan to cease to comply with any tax or
regulatory requirement, including for these purposes any approval or other
requirement which is or would be a prerequisite for exemptive relief from
Section 16(b) of the Exchange Act.
(b) Amendments to Awards. The Committee may waive any conditions or
--------------------
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted, prospectively or retroactively;
provided, however, that, subject to the Company's rights to adjust Awards under
- -------- -------
Sections 8(c) and (d), any amendment, alteration, suspension, discontinuation,
cancellation or termination that would impair the rights of any Participant or
holder or beneficiary of any Award theretofore granted, shall not to that extent
be effective without the consent of such Participant or holder or beneficiary of
an Award, as the case may be.
(c) Adjustment of Awards Upon Certain Acquisitions. In the event
----------------------------------------------
the Company or any Affiliate shall assume outstanding employee awards or the
right or obligation to make future such awards in connection with the
acquisition of another business or another corporation or business entity, the
Committee may make such adjustments, not inconsistent with the terms of the
Plan, in the terms of Awards as it shall deem appropriate in order to achieve
reasonable comparability or other equitable relationship between the assumed
awards and the Awards granted under the Plan as so adjusted.
(d) Adjustments of Awards Upon the Occurrence of Certain Unusual or
---------------------------------------------------------------
Non recurring Events. The Committee is hereby authorized to make adjustments in
- --------------------
the terms and conditions of, and the criteria included in, Awards in recognition
of unusual or non recurring events (including, without limitation, the events
described in Section 4(b) hereof) affecting the Company, any Affiliate, or the
financial statements of the Company or any Affiliate, or of changes in
applicable laws, regulations, or accounting principles, whenever the Committee
determines that such adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan.
14
<PAGE>
SECTION 9. General Provisions.
------------------
(a) No Rights to Awards. No Employee or other Person shall have any
-------------------
claim to be granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Employees, or holders or beneficiaries of Awards
under the Plan. The terms and conditions of Awards need not be the same with
respect to each recipient.
(b) Delegation. Subject to the terms of the Plan and applicable law,
----------
the Committee may delegate to one or more officers or managers of the Company or
any Affiliate, or to a committee of such officers or managers the authority
subject to such terms and limitations as the Committee shall determine, to grant
Awards to, or to cancel, modify, waive rights with respect to, alter,
discontinue, suspend, or terminate Awards; provided that, no such delegation
shall be permitted with respect to Awards held by Employees who are officers or
directors of the Company for purposes of Section 16 of the Exchange Act, or any
successor section thereto, or who are otherwise subject to such Section.
(c) Correction of Defects, Omissions, and Inconsistencies. The
-----------------------------------------------------
Committee may correct any defect, supply any omission, or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem desirable to carry the Plan into effect.
(d) Withholding. The Company or any Affiliate shall be authorized to
-----------
withhold from any Award granted, from any payment due or transfer made under any
Award or under the Plan or from any compensation or other amount owing to a
Participant the amount (in cash, Common Shares, other securities, other Awards,
or other property) of withholding taxes due in respect of an Award, its
exercise, or any payment or transfer under such Award or under the Plan and to
take such other action as may be necessary in the opinion of the Company or
Affiliate to satisfy all obligations for the payment of such taxes.
(e) No Limit on Other Compensation Arrangements. Nothing contained
-------------------------------------------
in the Plan shall prevent the Company or any Affiliate from adopting or
continuing in effect other or additional compensation arrangements, and such
arrangements may be either generally applicable or applicable only in specific
cases.
(f) No Right to Employment. The grant of an Award shall not be
----------------------
construed as giving a Participant the right to be retained in the employ of the
company or any Affiliate. Further, the Company or an Affiliate may at any
time dismiss a Participant from employment, free from any liability, or any
claim under the Plan, unless otherwise expressly provided in the Plan or in any
Award Agreement.
(g) Governing Law. The validity, construction, and effect of the
-------------
Plan and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Delaware and applicable Federal law.
15
<PAGE>
(h) Severability. If any provision of the Plan or any Award is or
------------
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or
the Award, such provision shall be stricken as to such jurisdiction, Person or
Award and the remainder of the Plan and any such Award shall remain in full
force and effect.
(i) No Trust or Fund Created. Neither the Plan nor any Award shall
------------------------
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(j) No Fractional Common Shares. No fractional Common Shares shall
---------------------------
be issued or delivered pursuant to the Plan or any Award, and the Committee
shall -determine whether cash, other securities, or other property shall be paid
or transferred in lieu of any fractional, common Shares or whether such
fractional Common Shares or any rights thereto shall be canceled, terminated, or
otherwise eliminated.
(k) Headings. Headings are given to the Sections and subsections of
--------
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
SECTION 10. Adoption, Approval and Effective Date of the Plan. The Plan
-------------------------------------------------
shall be considered adopted and shall become effective on the date the Plan is
approved by the Board; provided, however, that the Plan and any Awards granted
under the Plan shall be void, if the stockholders of the Company shall not have
approved the adoption of the Plan within twelve (12) months after the effective
date.
16
<PAGE>
EXHIBIT 4.8
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated [______________], 1996, is made by and between
Evergreen Media Corporation, a Delaware corporation hereinafter referred to as
"Company," and [_______________], an employee of the Company or a Parent
Corporation or Subsidiary of the Company, hereinafter referred to as "Optionee":
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its $.01 par value Class A Common Stock ("Common Stock"); and
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Committee, appointed to administer the Plan, has
determined that it would be to the advantage and best interest of the Company
and its shareholders to grant the Non-Qualified Option provided for herein to
the Optionee as an inducement to enter into or remain in the service of the
Company, its Parent Corporations or its Subsidiaries and as an incentive for
increased efforts during such service, and has advised the Company thereof and
instructed the undersigned officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
Section 1.1 - Board
- ----------- -----
"Board" shall mean the Board of Directors of the Company.
Section 1.2 - Code
- ----------- ----
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.3 - Committee
- ----------- ---------
"Committee" shall mean the Stock Option Committee or the Compensation
Committee (discharging the functions of the Stock Option Committee) of the
Board, as applicable, appointed as provided in the Plan.
<PAGE>
Section 1.4 - Company
- ----------- -------
"Company" shall mean Evergreen Media Corporation. In addition,
"Company" shall mean any corporation assuming, or issuing new employee stock
options in substitution for, Incentive Stock Options (as defined in Section 1.8
of the Plan), outstanding under the Plan, in a transaction to which Section
424(a) of the Code applies.
Section 1.5 - Director
- ----------- --------
"Director" shall mean a member of the Board.
Section 1.6 - Exchange Act
- ----------- ------------
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.7 - Officer
- ----------- -------
"Officer" shall mean an officer of the Company, as defined in Rule
16a-1(f) under the Exchange Act, as such Rule may be amended in the future.
Section 1.8 - Option
- ----------- ------
"Option" shall mean the non-qualified option to purchase Common Stock
of the Company granted under this Agreement.
Section 1.9 - Parent Corporation
- ----------- ------------------
"Parent Corporation" shall mean any corporation in an unbroken chain
of corporations ending with the Company if each of the corporations other than
the Company then owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one (1) of the other
corporations in such chain.
Section 1.10 - Plan
- ------------ ----
"Plan" shall mean the 1995 Stock Option Plan for Executive Officers
and Key Employees of Evergreen Media Corporation.
Section 1.11 - Rule 16b-3
- ------------ ----------
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange
Act, as such Rule may be amended in the future.
Section 1.12 - Secretary
- ------------ ---------
"Secretary" shall mean the Secretary of the Company.
2
<PAGE>
Section 1.13 - Securities Act
- ------------ --------------
"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.14 - Subsidiary
- ------------ ----------
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
Section 1.15 - Termination of Employment
- ------------ -------------------------
"Termination of Employment" shall mean the time when the employee-
employer relationship between the Optionee and the Company, a Parent Corporation
or a Subsidiary is terminated for any reason, with or without cause, including,
but not by way of limitation, a termination by resignation, discharge, death or
retirement, but excluding any terminations where there is a simultaneous
reemployment by the Company, a Parent Corporation or a Subsidiary. The
Committee, in its absolute discretion, shall determine the effect of all other
matters and questions relating to Termination of Employment, including, but not
by way of limitation, the question of whether a Termination of Employment
resulted from a discharge for good cause, and all questions of whether
particular leaves of absence constitute Terminations of Employment.
ARTICLE II
GRANT OF OPTION
---------------
Section 2.1 - Grant of Option
- ----------- ---------------
In consideration of the Optionee's agreement to remain in the employ
of the Company, its Parent Corporations or its Subsidiaries and for other good
and valuable consideration, on the date hereof the Company irrevocably grants to
the Optionee the option to purchase any part or all of an aggregate of [_______]
shares of its Common Stock upon the terms and conditions set forth in this
Agreement.
Section 2.2 - Purchase Price
- ----------- --------------
The purchase price of the shares of stock covered by the Option shall
be $[__.__] per share without commission or other charge.
Section 2.3 - Consideration to Company
- ----------- ------------------------
In consideration of the granting of this Option by the Company, the
Optionee agrees to render faithful and efficient services to the Company, a
Parent Corporation or a Subsidiary, with such duties and responsibilities as the
Company shall from time to time
3
<PAGE>
prescribe, for a period of at least one (1) year from the date this Option is
granted. Nothing in this Agreement or in the Plan shall confer upon the
Optionee any right to continue in the employ of the Company, any Parent
Corporation or any Subsidiary or shall interfere with or restrict in any way the
rights of the Company, its Parent Corporations and its Subsidiaries, which are
hereby expressly reserved, to discharge the Optionee at any time for any reason
whatsoever, with or without cause.
Section 2.4 - Adjustments in Option
- ----------- ---------------------
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event the Optionee's proportionate interest shall be maintained as before
the occurrence of such event. Such adjustment in the Option shall be made
without change in the total price applicable to the unexercised portion of the
Option (except for any change in the aggregate price resulting from rounding-off
of share quantities or prices) and with any necessary corresponding adjustment
in the Option price per share. Any such adjustment made by the Committee shall
be final and binding upon the Optionee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
------------------------
Section 3.1 - Commencement of Exercisability
- ----------- ------------------------------
The Option shall become exercisable on the first anniversary of the
date the Option is granted.
Section 3.2 - Duration of Exercisability
- ----------- --------------------------
The Option, which becomes exercisable pursuant to Section 3.1, shall
remain exercisable until it becomes unexercisable under Section 3.3.
Section 3.3 - Expiration of Option
- ----------- --------------------
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
4
<PAGE>
(b) The time of the Optionee's Termination of Employment unless such
Termination of Employment results from his death, his retirement, his disability
or his being discharged not for good cause; or
(c) The expiration of three (3) months from the date of the Optionee's
Termination of Employment by reason of his retirement or his being discharged
not for good cause, unless the Optionee dies within said three-month period; or
(d) The expiration of one (1) year from the date of the Optionee's
Termination of Employment by reason of his disability; or
(e) The expiration of one (1) year from the date of the Optionee's
death; or
(f) The effective date of either the merger or consolidation of the
Company with or into another corporation, or the acquisition by another
corporation or person of all or substantially all of the Company's assets or
eighty percent (80%) or more of the Company's then outstanding voting stock, or
the liquidation or dissolution of the Company, unless the Committee waives this
provision in connection with such transaction. At least ten (10) days prior to
the effective date of such merger, consolidation, acquisition, liquidation or
dissolution, the Committee shall give the Optionee notice of such event if the
Option has then neither been fully exercised nor become unexercisable under this
Section 3.3.
Section 3.4 - Acceleration of Exercisability
- ----------- ------------------------------
In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets or eighty percent (80%) or more
of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, the Committee may, in its absolute discretion and
upon such terms and conditions as it deems appropriate, provide by resolution,
adopted prior to such event and incorporated in the notice referred to in
Section 3.3(f), that at some time prior to the effective date of such event this
Option shall be exercisable as to all the shares covered hereby, notwithstanding
that this Option may not yet have become fully exercisable under Section 3.1;
provided, however, that this acceleration of exercisability shall not take place
if:
(a) This Option becomes unexercisable under Section 3.3 prior to said
effective date; or
(b) In connection with such an event, provision is made for an
assumption of this Option or a substitution therefor of a new option by an
employer corporation or a parent or subsidiary of such corporation.
The Committee may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such acceleration of exercisability, including, but not by way of
limitation, provisions to ensure
5
<PAGE>
that any such acceleration and resulting exercise shall be conditioned upon the
consummation of the contemplated corporate transaction.
ARTICLE IV
EXERCISE OF OPTION
------------------
Section 4.1 - Person Eligible to Exercise
- ----------- ---------------------------
During the lifetime of the Optionee, only he may exercise the Option
or any portion thereof. After the death of the Optionee, any exercisable
portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by his personal representative or
by any person empowered to do so under the Optionee's will or under the then
applicable laws of descent and distribution.
Section 4.2 - Partial Exercise
- ----------- ----------------
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for not less than
two hundred (200) shares and shall be for whole shares only.
Section 4.3 - Manner of Exercise
- ----------- ------------------
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion, stating that the Option or portion
is thereby exercised, such notice complying with all applicable rules
established by the Committee; and
(b) (i) Full payment (in cash or by check) for the shares with
respect to which such Option or portion is exercised; or
(ii) With the consent of the Committee, (A) shares of the
Company's Common Stock owned by the Optionee duly endorsed for transfer to
the Company or (B) subject to the timing requirements of Section 4.4,
shares of the Company's Common Stock issuable to the Optionee upon exercise
of the Option, with a fair market value (as determined under Section 4.2(b)
of the Plan) on the date of Option exercise equal to the aggregate purchase
price of the shares with respect to which such Option or portion is
exercised; or
(iii) With the consent of the Committee, a full recourse
promissory note bearing interest (at no less than such rate as shall then
preclude the imputation of
6
<PAGE>
interest under the Code or successor provision) and payable upon such terms
as may be prescribed by the Committee. The Committee may also prescribe
the form of such note and the security to be given for such note. The
Option may not be exercised, however, by delivery of a promissory note or
by a loan from the Company when or where such loan or other extension of
credit is prohibited by law; or
(iv) With the consent of the Committee, any combination of the
consideration provided in the foregoing subparagraphs (i), (ii) and (iii);
and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion, stating that the shares of stock
are being acquired for his own account, for investment and without any present
intention of distributing or reselling said shares or any of them except as may
be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the Company if
any sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Committee may, in its
absolute discretion, take whatever additional actions it deems appropriate to
insure the observance and performance of such representation and agreement and
to effect compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the
foregoing, the Committee may require an opinion of counsel acceptable to it to
the effect that any subsequent transfer of shares acquired on an Option exercise
does not violate the Securities Act, and may issue stop-transfer orders covering
such shares. Share certificates evidencing stock issued on exercise of this
Option shall bear an appropriate legend referring to the provisions of this
subsection (c) and the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to such exercise
have been registered under the Securities Act, and such registration is then
effective in respect of such shares; and
(d) Full payment to the Company (or other employer corporation) of
all amounts which, under federal, state or local tax law, it is required to
withhold upon exercise of the Option; with the consent of the Committee, (i)
shares of the Company's Common Stock owned by the Optionee duly endorsed for
transfer, or (ii) subject to the timing requirements of Section 4.4, shares of
the Company's Common Stock issuable to the Optionee upon exercise of the Option,
valued in accordance with Section 4.2(b) of the Plan at the date of Option
exercise, may be used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option.
7
<PAGE>
Section 4.4 - Certain Timing Requirements
- ----------- ---------------------------
Shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option may be used to satisfy the Option price or the tax
withholding consequences of such exercise only (i) during the period beginning
on the third (3rd) business day following the date of release of the quarterly
or annual summary statement of sales and earnings of the Company and ending on
the twelfth (12th) business day following such date or (ii) pursuant to an
irrevocable written election by the Optionee to use shares of the Company's
Common Stock issuable to the Optionee upon exercise of the Option to pay all or
part of the Option price or the withholding taxes (subject to the approval of
the Committee) made at least six (6) months prior to the payment of such Option
price or withholding taxes.
Section 4.5 - Conditions to Issuance of Stock Certificates
- ----------- --------------------------------------------
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
8
<PAGE>
Section 4.6 - Rights as Stockholder
- ----------- ---------------------
The holder of the Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any shares of stock
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
OTHER PROVISIONS
----------------
Section 5.1 - Administration
- ----------- --------------
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon the
Optionee, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. The
Board shall have no right to exercise any of the rights or duties of the
Committee under the Plan and this Agreement.
Section 5.2 - Option Not Transferable
- ----------- -----------------------
Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
Section 5.3 - Shares to Be Reserved
- ----------- ---------------------
The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
Section 5.4 - Notices
- ----------- -------
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different
9
<PAGE>
address for notices to be given to him. Any notice which is required to be
given to the Optionee shall, if the Optionee is then deceased, be given to the
Optionee's personal representative if such representative has previously
informed the Company of his status and address by written notice under this
Section 5.4. Any notice shall be deemed duly given when enclosed in a properly
sealed envelope or wrapper addressed as aforesaid, deposited (with postage
prepaid) in a post office or branch post office regularly maintained by the
United States Postal Service.
Section 5.5 - Titles
- ----------- ------
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
Section 5.6 - [Intentionally Omitted]
- ----------- ---------------------
Section 5.7 - Construction
- ----------- ------------
This Agreement shall be administered, interpreted and enforced under
the laws of the State of Delaware.
Section 5.8 - Conformity to Securities Laws
- ----------- -----------------------------
The Optionee acknowledges that the Plan is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including without limitation Rule 16b-3. Notwithstanding
anything herein to the contrary, the Plan shall be administered, and the Option
is granted and may be exercised, only in such a manner as to conform to such
laws, rules and regulations. To the extent permitted by applicable law, the
Plan and this Agreement shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
Section 5.9 - Restrictions on Transfer of Shares
- ----------- ----------------------------------
Notwithstanding any other provision of this Agreement, no shares of
Common Stock acquired upon exercise of the Option, or any portion thereof, may
be sold, assigned, pledged, encumbered or otherwise transferred until at least
six (6) months and one (1) day have elapsed from the date hereof.
10
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
EVERGREEN MEDIA CORPORATION
By:___________________________
Scott K. Ginsburg
Chief Executive Officer
By:___________________________
Matthew E. Devine
Secretary
____________________________
Optionee
____________________________
____________________________
Address
Optionee's Taxpayer
Identification Number:
____________________________
11
<PAGE>
EXHIBIT 4.9
EVERGREEN MEDIA CORPORATION
STOCK OPTION AGREEMENT FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, dated [______], 199__, is made by and between
Evergreen Media Corporation, a Delaware corporation hereinafter referred to as
"Company," and [____________], a Director of the Company, hereinafter referred
to as "Optionee":
R E C I T A L S:
- - - - - - - -
WHEREAS, the Company has adopted and the stockholders of the Company
have approved the Evergreen Media Corporation Stock Option Plan for Non-Employee
Directors (the "Plan");
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its $.01 par value Class A Common Stock ("Common Stock");
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Company has determined that it is in the best interests
of the Company and its stockholders to grant the option provided herein (the
"Option") to the Optionee pursuant to the Plan on the terms set forth herein in
order to attract and retain persons of exceptional ability to serve as outside
members of the Board and to solidify the common interests of stockholders and
the Company's non-employee directors in enhancing the value of the Company's
capital stock;
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
Section 1.1 - Board
- ----------- -----
"Board" shall mean the Board of Directors of the Company.
Section 1.2 - Code
- ----------- ----
"Code" shall mean the Internal Revenue Code of 1986, as amended.
<PAGE>
Section 1.3 - Company
- ----------- -------
"Company" shall mean Evergreen Media Corporation. In addition,
"Company" shall mean any corporation assuming, or issuing new stock options in
substitution for, Options outstanding under the Plan.
Section 1.4 - Director
- ----------- --------
"Director" shall mean a member of the Board who is not an employee of
the company or the Parent Corporation or any Subsidiary.
Section 1.5 - Exchange Act
- ----------- ------------
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.6 - Option
- ----------- ------
"Option" shall mean an option to purchase Class A Common stock, par
value $.01 per share, of the Company, granted under this Agreement.
Section 1.7 - Parent Corporation
- ----------- ------------------
"Parent Corporation" shall mean any corporation in an unbroken chain
of corporations ending with the Company if each of the corporations other than
the Company then owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one (1) of the other
corporations in such chain.
Section 1.8 - Plan
- ----------- ----
"Plan" shall mean the Evergreen Media Corporation Stock Option Plan
for Non-Employee Directors.
Section 1.9 - Rule 16b-3
- ----------- ----------
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange
Act, as such Rule may be amended in the future.
Section 1.10 - Secretary
- ------------ ---------
"Secretary" shall mean the Secretary of the Company.
Section 1.11 - Securities Act
- ------------ --------------
"Securities Act" shall mean the Securities Act of 1933, as amended.
2
<PAGE>
Section 1.12 - Subsidiary
- ------------ ----------
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
Section 1.13 - Termination of Directorship
- ------------ ---------------------------
"Termination of Directorship" shall mean the time when the Optionee
ceases to be a director of the Company or any Parent Corporation for any reason,
including, but not by way of limitation, a termination by resignation, failure
to be elected, removal, death or retirement. The Board, in its absolute
discretion, shall determine the effect of all matters and questions relating to
Termination of Directorship.
ARTICLE II
GRANT OF OPTION
---------------
Section 2.1 - Grant of Option
- ----------- ---------------
In consideration of the Optionee's agreement to serve as a Director of
the Company and for other good and valuable consideration, on the date hereof
the Company irrevocably grants to the Optionee the option to purchase any part
or all of an aggregate of 5,000 shares of its Class A Common Stock upon the
terms and conditions set forth in this Agreement.
Section 2.2 - Purchase Price
- ----------- --------------
The purchase price of the shares of stock covered by the Option shall
be $[__.__] per share without commission or other charge.
Section 2.3 - Consideration to Company
- ----------- ------------------------
In consideration of the granting of this Option by the Company, the
Optionee agrees to render faithful and efficient services as a Director of the
Company, from the date this Option is granted until the next annual meeting of
stockholders of the Company and until his successor is elected and qualified.
Nothing in this Agreement or in the Plan shall interfere with or restrict in any
way the rights of the stockholders of the Company to remove Optionee as a
director of the Company, which are hereby expressly reserved.
Section 2.4 - Adjustments in Option
- ----------- ---------------------
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization,
3
<PAGE>
reclassification, stock split up, stock dividend or combination of shares, the
Board shall make an appropriate and equitable adjustment in the number and kind
of shares as to which the Option, or portions thereof then unexercised, shall be
exercisable, to the end that after such event the Optionee's proportionate
interest shall be maintained as before the occurrence of such event. Such
adjustment in the Option shall be made without change in the total price
applicable to the Option or the unexercised portion of the Option (except for
any change in the aggregate price resulting from rounding-off of share
quantities or prices) and with any necessary corresponding adjustment in the
Option price per share. Any such adjustment made by the Board shall be final
and binding upon the Optionee, the Company and all other interested persons.
ARTICLE III
PERIOD OF EXERCISABILITY
------------------------
Section 3.1 - Commencement of Exercisability
- ----------- ------------------------------
The Option with respect to one-third of the shares of Common Stock
granted hereunder shall become exercisable on the first anniversary of the date
the Option is granted; the Option with respect to one-third of the shares of
Common Stock granted hereunder shall become exercisable on the second
anniversary of the date the Option is granted; and the Option with respect to
the remaining shares of Common Stock granted hereunder shall become exercisable
on the third anniversary of the date the Option is granted.
Section 3.2 - Duration of Exercisability
- ----------- --------------------------
The Option, which becomes exercisable pursuant to Section 3.1, shall
remain exercisable until it becomes unexercisable under Section 3.3.
Section 3.3 - Expiration of Option
- ----------- --------------------
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
(b) The expiration of three (3) months from the date of the Optionee's
Termination of Directorship other than resulting from the death or permanent
disability of the Optionee, his retirement as a Director on or after age 65, or
his ceasing to be eligible to participate in the Plan by reason of his becoming
an employee of the Company or any of its subsidiaries; or
(c) The expiration of eighteen (18) months from the date of the
Optionee's Termination of Directorship for any reason other than as specified in
Section 3.3(b); or
4
<PAGE>
(d) The effective date of either the merger or consolidation of the
Company with or into another corporation, or the acquisition by another
corporation or person of all or substantially all of the Company's assets or
eighty percent (80%) or more of the Company's then outstanding voting stock, or
the liquidation or dissolution of the Company, unless the Board waives this
provision in connection with such transaction. At least ten (10) days prior to
the effective date of such merger, consolidation, acquisition, liquidation or
dissolution, the Board shall give the Optionee notice of such event if the
Option has then neither been fully exercised nor become unexercisable under this
Section 3.3.
Section 3.4 - Acceleration of Exercisability
- ----------- ------------------------------
In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets or eighty percent (80%) or more
of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, the Board may, in its absolute discretion and upon
such terms and conditions as it deems appropriate, provide by resolution,
adopted prior to such event and incorporated in the notice referred to in
Section 3.3(d), that at some time prior to the effective date of such event this
Option shall be exercisable as to all the shares covered hereby, notwithstanding
that this Option may not yet have become fully exercisable under Section 3.1;
provided, however, that this acceleration of exercisability shall not take place
if:
(a) This Option becomes unexercisable under Section 3.3 prior to said
effective date; or
(b) In connection with such an event, provision is made for an
assumption of this Option or a substitution therefor of a new option by an
employer corporation or a parent or subsidiary of such corporation.
The Board may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such acceleration of exercisability, including, but not by way of
limitation, provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the contemplated
corporate transaction.
ARTICLE IV
EXERCISE OF OPTION
------------------
Section 4.1 - Person Eligible to Exercise
- ----------- ---------------------------
During the lifetime of the Optionee, only he may exercise the Option
or any portion thereof. After the death of the Optionee, any exercisable
portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by his personal representative or
by any person empowered to do so under the Optionee's will or under the then
applicable laws of descent and distribution.
5
<PAGE>
Section 4.2 - Partial Exercise
- ----------- ----------------
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for not less than
two hundred (200) shares and shall be for whole shares only.
Section 4.3 - Manner of Exercise
- ----------- ------------------
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion, stating that the Option or portion
is thereby exercised, such notice complying with all applicable rules
established by the Board; and
(b) (i) Full payment (in cash or by check) for the shares with
respect to which such Option or portion is exercised; or
(ii) shares of the Company's Common Stock owned by the Optionee
duly endorsed for transfer to the Company or, subject to the timing
requirements of Section 4.4, shares of the Company's Common Stock issuable
to the Optionee upon exercise of the Option, in each case with a fair
market value (as determined under Section 4.2(b) of the Plan) on the date
of Option exercise equal to the aggregate purchase price of the shares with
respect to which such Option or portion is exercised; or
(iii) any combination of the consideration provided in the
foregoing subparagraphs (i) and (ii); and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Board, signed by the Optionee or other person then entitled
to exercise such Option or portion, stating that the shares of stock are being
acquired for his own account, for investment and without any present intention
of distributing or reselling said shares or any of them except as may be
permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the Company if
any sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Board may, in its absolute
discretion, take whatever additional actions it deems appropriate to insure the
observance and performance of such representation and agreement and to effect
compliance with the Securities Act and any other federal or state securities
laws or regulations. Without limiting the generality of the foregoing, the
Board may require an opinion of counsel acceptable to it to the effect that any
subsequent transfer of shares
6
<PAGE>
acquired on an Option exercise does not violate the Securities Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of this subsection (c) and the agreements herein.
The written representation and agreement referred to in the first sentence of
this subsection (c) shall, however, not be required if the shares to be issued
pursuant to such exercise have been registered under the Securities Act, and
such registration is then effective in respect of such shares; and
(d) Full payment to the Company (or other employer corporation) of
all amounts which, under federal, state or local tax law, it is required to
withhold upon exercise of the Option; with the consent of the Board, (i) shares
of the Company's Common Stock owned by the Optionee duly endorsed for transfer,
or (ii) subject to the timing requirements of Section 4.4, shares of the
Company's Common Stock issuable to the Optionee upon exercise of the Option,
valued in accordance with Section 4.2(b) of the Plan at the date of Option
exercise, may be used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option.
Section 4.4 - Certain Timing Requirements
- ----------- ---------------------------
Shares of Common Stock issuable to the Optionee upon exercise of the
Option may be used to satisfy the Option price or the tax withholding
consequences of such exercise only (i) during the period beginning on the third
(3rd) business day following the date of release of the quarterly or annual
summary statement of revenues and earnings of the Company and ending on the
twelfth (12th) business day following such date or (ii) pursuant to an
irrevocable written election by the Optionee to use shares of Common Stock
issuable to the Optionee upon exercise of the Option to pay all or part of the
Option price or the withholding taxes (subject to the approval of the Board)
made at least six (6) months prior to the payment of such Option price or
withholding taxes.
Section 4.5 - Conditions to Issuance of Stock Certificates
- ----------- --------------------------------------------
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange
7
<PAGE>
Commission or of any other governmental regulatory body, which the Board shall,
in its absolute discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Board shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment to the Company of all amounts which, under federal,
state or local tax law, it is required to withhold upon exercise of the Option;
and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Board may from time to time establish for reasons
of administrative convenience.
Section 4.6 - Rights as Stockholder
- ----------- ---------------------
The holder of the Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any shares of stock
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
OTHER PROVISIONS
----------------
Section 5.1 - Administration
- ----------- --------------
The Board shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Board in good faith shall be final and binding upon the Optionee,
the Company and all other interested persons. No member of the Board shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Option.
Section 5.2 - Option Not Transferable
- ----------- -----------------------
Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
8
<PAGE>
Section 5.3 - Shares to Be Reserved
- ----------- ---------------------
The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
Section 5.4 - Notices
- ----------- -------
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall,
if the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall
be deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
Section 5.5 - Titles
- ----------- ------
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
Section 5.6 - [Intentionally Omitted]
- ----------- ---------------------
Section 5.7 - Construction
- ----------- ------------
This Agreement shall be administered, interpreted and enforced under
the laws of the State of Delaware.
Section 5.8 - Conformity to Securities Laws
- ----------- -----------------------------
The Optionee acknowledges that the Plan is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including without limitation Rule 16b-3. Notwithstanding
anything herein to the contrary, the Plan shall be administered, and the Option
is granted and may be exercised, only in such a manner as to conform to such
laws, rules and regulations. To the extent permitted by applicable law, the
Plan and this Agreement shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
9
<PAGE>
Section 5.9 - Restrictions on Transfer of Shares
- ----------- ----------------------------------
Notwithstanding any other provision of this Agreement, no shares of
Common Stock acquired upon exercise of the Option, or any portion thereof, may
be sold, assigned, pledged, encumbered or otherwise transferred until at least
six months and one day have elapsed from the date hereof.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
EVERGREEN MEDIA CORPORATION
By:___________________________
Scott K. Ginsburg
Chief Executive Officer
By:___________________________
Matthew E. Devine
Secretary
____________________________
Optionee
____________________________
____________________________
Address
Optionee's Taxpayer
Identification Number:
____________________________
10
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF LATHAM & WATKINS]
May 22, 1996
Evergreen Media Corporation
433 East Las Colinas Boulevard
Irving, Texas 75309
Re: Evergreen Media Corporation; Class A Common Stock, par value $.01
-----------------------------------------------------------------
per share
---------
Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement"), which you intend to file with the Securities
and Exchange Commission in connection with the registration under the Securities
Act of 1933, as amended, of (i) 1,500,000 shares of Class A Common Stock, par
value $.01 per share (the "1995 Plan Shares"), issued or to be issued by
Evergreen Media Corporation (the "Company") under the 1995 Stock Option Plan for
Executive Officers and Key Employees of Evergreen Media Corporation (the "1995
Plan"), (ii) 150,000 shares of Class A Common Stock, par value $.01 per share
(the "Directors Plan Shares"), issued or to be issued by the Company under the
Evergreen Media Corporation Stock Option Plan for Non-Employee Directors (the
"Directors Plan") and (iii) 62,718 shares of Class A Common Stock, par value
$.01 per share (the "BPI Plan Shares"), issued by the Company under the
Broadcasting Partners, Inc. 1994 Long Term Incentive Plan (the "BPI Plan").
We are familiar with the proceedings undertaken in connection with the
authorization of the 1995 Plan Shares under the 1995 Plan, the authorization of
the Directors Plan Shares under the Directors Plan and the authorization of the
BPI Plan Shares under the BPI Plan. Additionally, we have examined such
questions of law and fact as we have considered necessary or appropriate for
purposes of this opinion.
We are opining herein as to the effect on the subject transaction of
only the General Corporation Law of the State of Delaware and we express no
opinion with respect to the applicability thereto or the effect thereon of any
other laws or as to any matters of municipal law or any other local agencies
within any state.
Subject to the foregoing and in reliance thereon, it is our opinion
that:
(i) upon the exercise of options granted pursuant to the 1995 Plan
and subject to the Company completing all actions and proceedings required on
its part to be taken prior to the issuance of the 1995 Plan Shares pursuant to
the 1995 Plan and the Registration Statement, including, without limitation,
collection of required payment for such shares, the 1995 Plan Shares will be
validly issued, fully paid and non-assessable securities of the Company;
<PAGE>
Evergreen Media Corporation
May 22, 1996
Page 2
(ii) upon the exercise of options granted pursuant to the Directors
Plan and subject to the Company completing all actions and proceedings required
on its part to be taken prior to the issuance of the Directors Plan Shares
pursuant to the Directors Plan and the Registration Statement, including,
without limitation, collection of required payment for such shares, the
Directors Plan Shares will be validly issued, fully paid and non-assessable
securities of the Company; and
(iii) upon the exercise of options granted pursuant to the BPI Plan
and subject to the Company completing all actions and proceedings required on
its part to be taken prior to the issuance of the BPI Plan Shares pursuant to
the BPI Plan and the Registration Statement, including, without limitation,
collection of required payment for such shares, the BPI Plan Shares will be
validly issued, fully paid and non-assessable securities of the Company.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
Evergreen Media Corporation:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
--------------------------
KPMG PEAT MARWICK LLP
Dallas, Texas
May 15, 1996
