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EXHIBIT 10.18.3
THE SHARES ISSUABLE PURSUANT TO THIS AGREEMENT ARE SUBJECT TO AN
OPTION TO REPURCHASE AND A RIGHT OF FIRST REFUSAL PROVIDED UNDER THE
PROVISIONS OF THE COMPANY'S 1997 STOCK OPTION PLAN AND THIS AGREEMENT
ENTERED INTO PURSUANT THERETO. A COPY OF SUCH PLAN IS AVAILABLE UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
CAPSTAR BROADCASTING CORPORATION
1997 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR ELIGIBLE NON-EMPLOYEES
[Date]
[SEE SCHEDULE I]
Re: Grant of Stock Option
Dear ________________:
The Board of Directors of Capstar Broadcasting Corporation (the
"Company") has adopted the Company's 1997 Stock Option Plan (the "Plan") for
certain individuals, directors and key employees of the Company and its Related
Entities. A copy of the Plan is being furnished to you concurrently with the
execution of this Option Agreement and shall be deemed a part of this Option
Agreement as if fully set forth herein. Unless the context otherwise requires,
all terms defined in the Plan shall have the same meaning when used herein.
1. The Grant.
Subject to the conditions set forth below, the Company hereby grants
to you, effective as of [See Schedule I] (the "Grant Date"), as a matter of
separate inducement and not in lieu of any compensation for your services, the
right and option to purchase (the "Option"), in accordance with the terms and
conditions set forth herein and in the Plan, an aggregate of [See Schedule I]
shares of Class A Common Stock of the Company (the "Option Shares"), at the
Exercise Price (as hereinafter defined). As used herein, the term "Exercise
Price" shall mean a price equal to $ [See Schedule I] per share, subject to the
adjustments and limitations set forth herein and in the Plan. The Option
granted hereunder is intended to constitute a Non-Qualified Option within the
meaning of the Plan; however, you should consult with your tax advisor
concerning the proper reporting of any federal or state tax liability that may
arise as a result of the grant or exercise of the Option.
2. Exercise.
(a) For purposes of this Option Agreement, the Option
Shares shall be deemed "Nonvested Shares" unless and until they have become
"Vested Shares." Except as otherwise provided in Section 3, the Option Shares
shall become "Vested Shares" with respect to 20% of the Option Shares, on the
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first anniversary of the Grant Date, and 1/60th of the Option Shares shall vest
on the last day of each calendar month thereafter, so that all of the Option
Shares shall be vested 60 months after the Grant Date, provided that vesting
shall cease upon your ceasing to be a director of the Company or a Related
Entity as expressly provided in Section 3 hereof.
(b) Subject to the relevant provisions and limitations
contained herein and in the Plan, you may exercise the Option to purchase all
or a portion of the applicable number of Vested Shares at any time prior to the
termination of the Option pursuant to this Option Agreement. In no event shall
you be entitled to exercise the Option for any Nonvested Shares or for a
fraction of a Vested Share.
(c) The unexercised portion of the Option, if any, will
automatically, and without notice, terminate and become null and void upon the
expiration of six (6) years from the Grant Date.
(d) Any exercise by you of the Option shall be in writing
addressed to the Secretary of the Company at its principal place of business (a
copy of the form of exercise to be used will be available upon written request
to the Secretary), and shall be accompanied by a certified or bank check
payable to the order of the Company in the full amount of the Exercise Price of
the shares so purchased, or in such other manner as described in the Plan and
approved by the Committee.
3. Termination of Relationship.
Upon the termination of your relationship with the Company or
any Related Entity, you may, until the earlier of (x) 30 days from the date of
such termination or (y) the expiration of the Option in accordance with its
terms, exercise the Option with respect to all or any part of the Vested Shares
which you were entitled to purchase immediately prior to such termination and,
thereafter, the Option shall, to the extent not previously exercised,
automatically terminate and become null and void, provided that:
(a) in the case of termination of your relationship with
the Company or any Related Entity due to death, your
estate (or any Person who acquired the right to
exercise such Option by bequest or inheritance or
otherwise by reason of your death) may, until the
earlier of (x) the 181st day after the date of death
or (y) the expiration of the Option in accordance
with its terms, exercise the Option with respect to
all or any part of the Vested Shares which you were
entitled to purchase immediately prior to the time of
your death;
(b) in the case of termination of your relationship with
the Company or any Related Entity due to Disability,
you or your legal representative may, until the
earlier of (x) the 181st day after the date your
relationship was terminated or (y) the expiration of
the Option in accordance with its terms, exercise the
Option with respect to all or any part of the Vested
Shares which you were entitled to purchase
immediately prior to the time of such termination;
and
(c) in the case of termination of your relationship with
the Company or any Related Entity (i) for Good Cause
(as determined by the Committee in its sole judgment
in accordance with the Plan and this Agreement), (ii)
as a result of your removal from office as a director
of the Company or of any Related Entity for cause by
action of the stockholders of the Company or such
Related Entity in accordance with the by-laws of the
Company or such Related Entity, as applicable, and
the corporate law of the jurisdiction of
incorporation of the Company or such Related Entity,
or (iii) as a result of the voluntarily termination
by you of your service without the consent of the
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Company or any Related Entity, then you shall
immediately forfeit your rights under the Option
except as to those Option Shares already purchased.
4. Transferability.
Except as provided in Section 7 hereof, the Option and any rights or
interests therein are not assignable or transferable by you except by will or
the laws of descent and distribution, and during your lifetime, the Option
shall be exercisable only by you or, in the event that a legal representative
has been appointed in connection with your Disability, such legal
representative. Any Option Shares received upon exercise of this Option are
subject to the Company's Right of First Refusal (as defined in the Plan).
To assure the enforceability of the Company's rights under this
Section 4 in regard to the Right of First Refusal, each certificate or
instrument representing Common Stock or an Option held by you shall bear a
conspicuous legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF
FIRST REFUSAL PROVIDED UNDER THE PROVISIONS OF THE COMPANY'S 1997
STOCK OPTION PLAN AND A STOCK OPTION AGREEMENT ENTERED INTO PURSUANT
THERETO. A COPY OF SUCH OPTION PLAN AND OPTION AGREEMENT ARE
AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICES.
5. Registration.
The Company shall not in any event be obligated to file any
registration statement under the Securities Act or any applicable state
securities laws to permit exercise of the Option or to issue any Common Stock
in violation of the Securities Act or any applicable state securities laws.
You (or in the event of your death or, in the event a legal representative has
been appointed in connection with your Disability, the Person exercising the
Option) shall, as a condition to your right to exercise the Option, deliver to
the Company an agreement or certificate containing such representations,
warranties and covenants as the Company may deem necessary or appropriate to
ensure that the issuance of the Option Shares pursuant to such exercise is not
required to be registered under the Securities Act or any applicable state
securities laws.
Certificates for Option Shares, when issued, shall have substantially
the following legend, or statements of other applicable restrictions, endorsed
thereon, and may not be immediately transferable:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED
FOR SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF
UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE
ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH
OFFER, SALE, PLEDGE, TRANSFER OR OTHER DISPOSITION WILL NOT
VIOLATE APPLICABLE FEDERAL OR STATE LAWS.
The foregoing legend may not be required for Option Shares
issued pursuant to an effective registration statement under the Securities Act
and in accordance with applicable state securities laws.
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6. Withholding Taxes.
By acceptance hereof, you hereby (i) agree to reimburse the Company or
any Related Entity for any federal, state or local taxes required by any
government to be withheld or otherwise deducted by such corporation in respect
of your exercise of all or a portion of the Option, (ii) authorize the Company
or any Related Entity to withhold from any cash compensation paid to you or on
your behalf, an amount sufficient to discharge any federal, state and local
taxes imposed on the Company, or the Related Entity, and which otherwise has
not been reimbursed by you, in respect of your exercise of all or a portion of
the Option, and (iii) agree that the Company may, in its discretion, hold the
stock certificate to which you are entitled upon exercise of the Option as
security for the payment of the aforementioned withholding tax liability, until
cash sufficient to pay that liability has been accumulated, and may, in its
discretion, effect such withholding by retaining shares issuable upon the
exercise of the Option having a Fair Market Value on the date of exercise which
is equal to the amount to be withheld.
7. Purchase Option.
(a) If (i) your relationship with the Company or a
Related Entity terminates for any reason at any time or (ii) a Change of
Controls occurs, the Company and/or its designees shall have the option (the
"Purchase Option") to purchase, and if the option is exercised, you (or your
executor or the administrator of your estate or the Person who acquired the
right to exercise the Option by bequest or inheritance in the event. of your
death, or your legal representative in the event of your incapacity
(hereinafter, collectively with such optionee, the "Grantor")) shall sell to
the Company and/or its assignee(s), all or any portion (at the Company's
option) of the Option Shares and/or the Option held by the Grantor (such Option
Shares and Option collectively being referred to as the "Purchasable Shares"),
subject to the Company's compliance with the conditions hereinafter set forth.
(b) The Company shall give notice in writing to the
Grantor of the exercise of the Purchase Option within one (1) year from the
date of the termination of your relationship or such Change of Control. Such
notice shall state the number of Purchasable Shares to be purchased and the
determination of the Board of Directors of the Fair Market Value per share of
such Purchasable Shares. If no notice is given within the time limit specified
above, the Purchase Option shall terminate.
(c) The purchase price to be paid for the Purchasable
Shares purchased pursuant to the Purchase Option shall be, in the case of any
Option Shares, the Fair Market Value per share times the number of shares being
purchased, and in the case of the Option, the Fair Market Value per share times
the number of Vested Shares subject to such Option which are being purchased,
less the applicable per share Option Exercise Price. The purchase price shall
be paid in cash. The closing of such purchase shall take place at the
Company's principal executive offices within ten (10) days after the purchase
price has been determined. At such closing, the Grantor shall deliver or shall
cause to be delivered to the purchasers the certificates or instruments
evidencing the Purchasable Shares being purchased, duly endorsed (or
accompanied by duly executed stock powers) and otherwise in good form for
delivery, against payment of the purchase price by check of the purchasers. In
the event that, notwithstanding the foregoing, the Grantor shall have failed to
obtain the release of any pledge or other encumbrance on any Purchasable Shares
by the scheduled closing date, at the option of the purchasers the closing
shall nevertheless occur on such scheduled closing date, with the cash purchase
price being reduced to the extent of all unpaid indebtedness for which such
Purchasable Shares are then pledged or encumbered.
(d) To assure the enforceability of the Company's rights
under this Section 7, each certificate or instrument representing Option Shares
subject to this Option Agreement shall bear a conspicuous legend in
substantially the following form:
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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
OPTION TO REPURCHASE PROVIDED UNDER THE PROVISIONS OF THE
COMPANY'S 1997 STOCK OPTION PLAN AND A STOCK OPTION AGREEMENT
ENTERED INTO PURSUANT THERETO. A COPY OF SUCH OPTION PLAN AND
OPTION AGREEMENT ARE AVAILABLE UPON WRITTEN REQUEST TO THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
(e) The Company's rights under this Section 7 shall
terminate upon the consummation of a Qualifying Public Offering.
8. Definition of Good Cause.
Notwithstanding anything contained in the Plan to the contrary, for
purposes of this Agreement, "Good Cause" shall mean termination by action of
the Board of Directors because of: (A) your conviction of, or plea of nolo
contendere to, a felony or a crime involving moral turpitude; (B) your personal
dishonesty, incompetence, willful misconduct, willful violation of any law,
rule, or regulation (other than minor traffic violations or similar offenses)
or breach of fiduciary duty which involves personal profit; (C) your commission
of material mismanagement in providing services to the Company or any Related
Entity; (D) your willful failure to comply with the policies of the Company in
providing services to the Company or any Related Entity, or your intentional
failure to perform the services for which you have been engaged; (E) substance
abuse or addiction on your part; or (F) your willfully making any material
misrepresentation or willfully omitting to disclose any material fact to the
board of directors of the Company or any Related Entity with respect to the
business of the Company or any Related Entity.
9. Consent to Approved Sale.
If the Board and the holders of a majority of the Common Stock then
outstanding approve the Sale of the Company to an independent third party (the
"Approved Sale"), you shall consent to and raise no objections against the
Approved Sale, and if the Approved Sale is structured as a sale of capital
stock, you shall agree to sell all of your Option Shares and rights to acquire
Option Shares on the terms and conditions approved by the Board of Directors
and the holders of a majority of the Common Stock then outstanding. You shall
take all necessary and desirable actions in connection with the consummation of
the Approved Sale. For purposes of this Section 9, an "independent third
party" is any person who does not own in excess of 5% of the Common Stock on a
fully-diluted basis, who is not controlling, controlled by or under common
control with any such 5% owner of the Common Stock and who is not the spouse,
ancestor, descendant (by birth or adoption) or descendent of a grandparent of
any such 5% owner of the Common Stock. If the Company or the holders of the
Company's securities enter into any negotiation or transaction for which Rule
506 (or any similar rule then in effect) promulgated pursuant to the Securities
Act may be available with respect to such negotiation or transaction (including
a merger, consolidation or other reorganization), you shall, at the request of
the Company, appoint a purchaser representative (as such term is defined in
Rule 501 promulgated pursuant to the Securities Act) reasonably acceptable to
the Company. If you appoint the purchaser representative designated by the
Company, the Company will pay the fees of such purchaser representative, but if
you decline to appoint the purchaser representative designated by the Company
you shall appoint another purchaser representative (reasonably acceptable to
the Company), and you shall be responsible for the fees of the purchaser
representative so appointed.
10. Adjustments.
In the event that, by reason of any merger, consolidation,
combination, liquidation, reorganization, recapitalization, stock dividend,
stock split, split-up, split-off, spin-off, combination of shares, exchange of
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shares or other like change in capital structure of the Company (collectively,
a "Reorganization"), the Common Stock is substituted, combined, or changed into
any cash, property, or other securities, or the shares of Common Stock are
changed into a greater or lesser number of shares of Common Stock, the number
and/or kind of shares and/or interests subject to an Option and the per share
price or value thereof shall be appropriately adjusted by the Committee to give
appropriate effect to such Reorganization, such that the Option shall
thereafter be exercisable for such securities, cash, and/or other property as
would have been received in respect of the Option Shares subject to the Option
had the Option been exercised in full immediately prior to such event. Any
fractional shares or interests resulting from such adjustment shall be
eliminated.
11. Miscellaneous.
(a) This Option Agreement is subject to all the terms,
conditions, limitations and restrictions contained in the Plan. In the event
of any conflict or inconsistency between the terms hereof and the terms of the
Plan, the terms of the Plan shall be controlling.
(b) This Option Agreement may be amended as provided in
Section 19 of the Plan.
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Please indicate your acceptance of all the terms and conditions of the
Option and the Plan by signing and returning a copy of this Option Agreement.
Very truly yours,
CAPSTAR BROADCASTING CORPORATION
By: /S/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxx, Xx.
Executive Vice President
ACCEPTED:
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Signature of Optionee
[See Schedule I ]
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Name of Optionee (Please Print)
Date:
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SCHEDULE I
Exercise
Name Grant Date Option Shares Price/Share
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R. Xxxxxx Xxxxxx July 1, 1997 75,188 $1.33
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