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Exhibit
10.9
C ITADEL B
ROADCASTING C
ORPORATION
A MENDED
AND R ESTATED 2002 L
ONG -T ERM I NCENTIVE
P LAN
S TOCK O
PTION A GREEMENT
R EFERENCE
N UMBER : 002
1.1 Option . On the
terms and conditions set forth in this Stock Option Agreement and
each Notice of Stock Option Grant (the “ Notice
”) referencing this Agreement, Citadel Broadcasting
Corporation (“ Company ”) grants to [FULL
NAME] (the “ Optionee ”) on the Date of
Grant an option to purchase at the Option Price a number of Shares,
all as set forth in the Notice. Each such Notice, together with
this referenced Agreement, shall be a separate option governed by
the terms of this Agreement and the Plan. This option is intended
to be an ISO or a Nonstatutory Option, as provided in the
Notice.
1.2 Plan . This option
is granted under and subject to the terms of the Citadel
Broadcasting Corporation Amended and Restated 2002 Long Term
Incentive Plan (“ Plan ”), which is incorporated
herein by this reference. Capitalized terms not otherwise defined
herein shall have the meaning ascribed to such term in the
Plan.
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NO TRANSFER OR ASSIGNMENT OF OPTION. |
Except as otherwise provided
in this Agreement or permitted by the Committee, this option and
the rights and privileges conferred hereby shall not be sold,
pledged or otherwise transferred (whether by operation of law or
otherwise) and shall not be subject to sale under execution,
attachment, levy or similar process.
3.1 “ Affiliate
” shall mean, with respect to any Person, any other Person
which, directly or indirectly, is in control of, or is controlled
by, or is under common control with, such Person.
3.2 “ Board of
Directors ” shall mean the Board of Directors of the
Company, as constituted from time to time or, if a Committee has
been appointed, such Committee.
3.3 “ Cause
” shall mean (i) the occurrence of any of the events set
forth in Section 9.1 or 9.2, or (ii) the Optionee’s
having (A) grossly neglected his or her assigned duties or
(B) engaged in willful misconduct resulting in, or reasonably
likely to result in, material and demonstrable damage to the
Company, unless the Optionee is subject to the terms of an
employment agreement which includes a definition of
“cause”, in which case such definition shall apply for
purposes of the Plan.
3.4 “ Code
” shall mean the Internal Revenue Code of 1986, as amended
from time to time.
3.5 “ Committee
” shall mean a committee of the Board of Directors, as
described in Section 1.2 of the Plan.
3.6 “ Company
” shall mean Citadel Broadcasting Corporation, a Delaware
corporation, and its subsidiaries, including any successor thereto
by merger, consolidation, acquisition of substantially all the
assets thereof, or otherwise.
3.7 “ Consultant
” shall mean a person who performs bona fide services for the
Company, a Parent or a Subsidiary as a consultant or advisor,
excluding Employees and Directors.
3.8 “ Date of
Grant ” shall mean the date specified in the
Notice.
3.9 “ Director
” shall mean a member of the Board of Directors who is not an
Employee.
3.10 “
Disability ” shall mean that the Optionee is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment as determined
by the Board of Directors in its sole discretion.
3.11 “ Employee
” shall mean any individual who is a common-law employee of
the Company, a Parent or a Subsidiary.
3.12 “ Fair Market
Value ” shall mean on any date means (a) the closing
price in the primary trading session for a Share on such date on
the stock exchange, if any, on which Shares are primarily traded
(or if no shares were traded on such date, then on the most recent
previous date on which any shares were so traded), (b) if
clause (a) is not applicable, the closing price of the Shares
on such date on The Nasdaq Stock Market at the close of the primary
trading session (or if no shares were traded on such date, then on
the most recent previous date on which any shares were so traded)
or (c) if neither clause (a) nor clause (b) is
applicable, the value of a Share for such date as established by
the Committee, using any reasonable method of valuation.
3.13 “ ISO
” shall mean an incentive stock option described in
Section 422(b) of the Code.
3.14 “ Legal
Representative ” shall mean the guardian, executor,
administrator or other legal representative of the Optionee. All
references herein to the Optionee shall be deemed to include
references to the Optionee’s Legal Representative, if any,
unless the context otherwise requires.
3.15 “ Nonstatutory
Option ” shall mean a stock option not described in
Sections 422(b) or 423(b) of the Code.
3.16 “ Optionee
” shall mean the person named in the Notice.
3.17 “ Option
Price ” shall mean the amount for which one Share may be
purchased upon exercise of this option, as specified in the
Notice.
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3.18 “ Parent
” shall mean any company (other than the Company) in an
unbroken chain of companies ending with the Company, if each of the
companies other than the Company owns stock possessing fifty
percent (50%) or more of the total combined voting power of
all classes of stock in one of the other companies in such chain. A
company that attains the status of a Parent on a date after the
execution of this Agreement shall be considered a Parent commencing
as of such date.
3.19 “ Person
” shall mean means an individual, a company, a partnership,
an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
3.20 “ Plan
” shall mean the Citadel Broadcasting Corporation Amended and
Restated 2002 Long-Term Incentive Plan, as it may be amended or
restated from time to time.
3.21 “ Purchase
Price ” shall mean the Option Price multiplied by the
number of Shares with respect to which this option is being
exercised.
3.22 “ Restricted
Share” shall mean a Share that is subject to a Right of
Repurchase.
3.23 “ Right of
Repurchase ” shall mean the Company’s right of
repurchase described in Section 7.
3.24 “ Securities
Act ” shall mean the Securities Act of 1933, as
amended.
3.25 “ Service
” shall mean service as an Employee, Director or
Consultant.
3.26 “ Share
” shall mean one share of common stock, par value $0.01 per
share, of the Company. There shall be included within the term
Share any common stock now or hereafter authorized to be issued,
and any and all securities of any kind whatsoever of the Company
which may be issued after the date hereof in respect of, or in
exchange for, shares of common stock.
3.27 “
Subsidiary ” shall mean any company (other than the
Company) in an unbroken chain of companies beginning with the
Company, if each of the companies other than the last company in
the unbroken chain owns stock possessing fifty percent
(50%) or more of the total combined voting power of all
classes of stock in one of the other companies in such chain. A
company that attains the status of a Subsidiary on a date after the
execution of this Agreement shall be considered a Subsidiary
commencing as of such date.
3.28 “
Transferee ” shall mean any person to whom the
Optionee has directly or indirectly transferred any Share acquired
under this Agreement.
4.1 Exercisability .
Subject to the conditions set forth in this Agreement, all or part
of this option may be exercised prior to its expiration at the time
or times set forth in the Notice or this Agreement. To the extent
the Notice permits, the Optionee may exercise this option to
purchase Shares for which the Optionee is not yet vested. If
exercised for Shares that have not yet vested, such Shares shall be
subject to the Right of Repurchase as described in
Section 7.
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4.2 Exercise Period .
The option may be exercised (to the extent the option is
exercisable pursuant to the Notice at such time) at any
time.
4.3 Accelerated Vesting;
Forfeiture . The Committee may, in its discretion, provide in
the Notice for accelerated vesting or forfeiture of the Shares
subject to this option.
4.4 $100,000
Limitation . If this option is designated as an ISO in the
Notice, then the Optionee’s right to exercise this option
shall be deferred to the extent (and only to the extent) that this
option would not be treated as an ISO solely by reason of the
$100,000 annual limitation under Section 422(d) of the Code,
except that the Optionee’s right to exercise this option
shall no longer be deferred if (i) the Company is subject to a
Change in Control before the Optionee’s Service terminates,
(ii) the Company, or any surviving company, or its parent does
not continue this option, and (iii) any surviving company or
its parent does not assume this option or does not substitute an
option with substantially the same terms for this
option.
5.1 Notice of Exercise
. The Optionee or the Optionee’s Legal Representative may
exercise this option by giving written notice to the Company
specifying the election to exercise this option, the number of
Shares for which it is being exercised and the form of payment.
Exhibit A is an example of a “Notice of
Exercise”. The Notice of Exercise shall be signed by the
person exercising this option. In the event that this option is
being exercised by the Optionee’s Legal Representative, the
notice shall be accompanied by proof (satisfactory to the Company)
of the Legal Representative’s right to exercise this option.
The Optionee or the Optionee’s Legal Representative shall
deliver to the Company, at the time of giving the notice, payment
in a form permissible under Section 5.5 for the full amount of
the Purchase Price.
5.2 Issuance of Shares
.
(a) After receiving a proper
notice of exercise and an undated stock power with respect to any
Shares subject to this option that have not yet vested, the Company
shall cause to be issued a certificate or certificates for the
Shares as to which this option has been exercised, registered in
the name of the person exercising this option (or in the names of
such person and his or her spouse as community property or as joint
tenants with right of survivorship). Not less than one hundred
Shares may be purchased at any one time upon any exercise of this
option, unless the number of Shares so purchased constitutes the
total number of Shares then purchasable under this
option.
(b) All certificates
representing any Shares subject to this option that have not yet
vested shall have endorsed thereon (i) any appropriate legends
that may be, in the judgment of the Company, necessary or desirable
in order to achieve compliance with the United States Securities
Act of 1933, as amended, or the securities laws of any state or any
other law and (ii) the following legend:
“The shares represented
by this certificate are subject to certain restrictions pursuant to
an agreement between Citadel Broadcasting Corporation and the
registered holder, a copy of which is on file at the principal
office of Citadel Broadcasting Corporation.”
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5.3 Section 83(b)
Election . To the extent the Optionee is permitted by the terms
of the Notice to exercise a Nonstatutory Option for Shares that are
not vested, Section 83 of the Code provides that the Optionee
is not subject to federal income tax upon such exercise until the
Right of Repurchase with respect to the Shares purchased lapses. If
the Optionee chooses, the Optionee may make an election under
Section 83(b) of the Code, which would cause the Optionee to
recognize income in the amount of the excess (if any) of the Fair
Market Value of the Shares acquired (determined as of the date the
Option is exercised) over the Purchase Price. A Section 83(b)
election must be filed with the Internal Revenue Service within
thirty (30) days after the date of exercise — even if no
tax is payable because the Fair Market Value of the Restricted
Shares on the date the Option is exercised equals the Purchase
Price paid. The form for making a Section 83(b) election is
attached as Exhibit C . The Optionee acknowledges that it is
the Optionee’s sole responsibility to timely file the
Section 83(b) election and that failure to file a
Section 83(b) election within the applicable thirty
(30) day period may result in the recognition of ordinary
income when the Right of Repurchase lapses.
5.4 Withholding
Requirements . The Company may withhold any tax (or other
governmental obligation) as a result of the exercise of this option
and/or the filing of a Section 83(b) election, as a condition
to the exercise of this option, and the Optionee shall make
arrangements satisfactory to the Company to enable it to satisfy
all such withholding requirements. The Optionee shall also make
arrangements satisfactory to the Company to enable it to satisfy
any withholding requirements that may arise in connection with the
vesting or disposition of Shares purchased by exercising this
option.
5.5 Payment for Shares
. Payment of the Purchase Price shall be made by delivery to the
Company of a certified or bank check payable to the order of the
Company or cash by wire transfer or other immediately available
funds to an account designated by the Company.
6.1 Basic Term .
Subject to earlier termination in accordance with this Agreement,
this option shall expire on the expiration date set forth in the
Notice.
6.2 Termination of
Service . Except as may be agreed between the Committee and the
Optionee, if the Optionee’s employment by the Company shall
have ceased for any reason whatsoever (including by reason of
death, permanent disability or adjudicated incompetency)
(“Terminated” or a “Termination”),
irrespective of whether the Optionee receives, in connection with
the Termination, any severance or other payment from the Company
under any employment agreement or otherwise (such Optionee being
referred to herein as a “Terminated Optionee”), then
(i) to the extent that the Option is not exercisable pursuant
to the Notice at the date of such Termination, this option shall
terminate on and shall be of no further force and effect from and
after the date of such Termination, (ii) to the extent that
the option is exercisable pursuant to the Notice at the date of
such Termination (the “Exercisable Portion of the
Option”), the Terminated Optionee shall have the right, at
his or her option, to exercise the Exercisable Portion of the
Option in whole or in part one time at any time within (x) 60
days after the date of such Termination or (y) if such
Termination is as a result of the Terminated Optionee’s death
then the time period to exercise such option shall be one year
after the date of such Termination, but in no event after the
expiration of the term of the option, and, until exercised, the
Exercisable Portion of the Option shall continue to be subject to
the terms of this Agreement. To the extent that the
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Terminated Optionee does not exercise
the Exercisable Portion of the option within the 60-day or one year
period, as applicable, exercise period provided for in this
Section 6.2, the unexercised portion of the Exercisable
Portion of the option shall terminate and shall be of no further
force and effect from and after the final date on which the
Terminated Optionee could have so exercised the Exercisable Portion
of the option.
6.3 Leaves of Absence
. For any purpose under this Agreement, Service shall be deemed to
continue while the Optionee is on a bona fide leave of absence, if
such leave was approved by the Company in writing or if continued
crediting of Service for such purpose is expressly required by the
terms of such leave or by applicable law (as determined by the
Company).
6.4 Notice Concerning ISO
Treatment . If this option is designated as an ISO in the
Notice, it ceases to qualify for favorable tax treatment as an ISO
to the extent it is exercised (i) more than three
(3) months after the date the Optionee ceases to be an
Employee for any reason other than death or permanent and total
disability (as defined in Section 22(e)(3) of the Code),
(ii) more than twelve (12) months after the date the
Optionee ceases to be an Employee by reason of such permanent and
total disability or (iii) after the Optionee has been on a
leave of absence for more than ninety (90) days, unless the
Optionee’s reemployment rights are guaranteed by statute or
by contract.
7.1 Right of
Repurchase . To the extent this option is exercised for Shares
that are not vested, the Shares so acquired initially shall be
Restricted Shares and shall be subject to a right (but not an
obligation) of repurchase by the Company. The Optionee shall not
transfer, assign, encumber or otherwise dispose of any Restricted
Shares. If the Optionee transfers any Restricted Shares, then this
Section 7 shall apply to the Transferee to the same extent as
to the Optionee.
7.2 Exercise Notice .
In the event the Company wishes to exercise its Right of
Repurchase, the Company shall provide the Optionee with sixty
(60) days prior written notice of its intent to exercise its
right. A sample Right of Repurchase Exercise Notice is attached
hereto as Exhibit D . Such notice shall contain the price
per Share which shall be the repurchase price, described in
subsection 7.4 below, and all other terms and conditions of the
offer (including, without limitatio
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