Exhibit 4.6
STOCK OPTION AGREEMENT
UNDER
BOZELL, JACOBS, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
STOCK OPTION PLAN
THIS AGREEMENT, made as of 31st day of December, 1996, by and between
BOZELL, JACOBS, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.(the "Company") and the "Optionee").
W I T N E S S E T H :
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WHEREAS, the Optionee is an employee of the Company, and the Company
desires to encourage Optionee's continued service as an employee and to afford
Optionee the opportunity to enlarge Optionee's stock ownership in the Company so
as to further Optionee's direct proprietary interest in the Company's success;
NOW THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth herein
and in the Company's Stock Option Plan (the "Stock Option Plan"), a copy of
which the Optionee acknowledges has been delivered to him previously, the
Company hereby grants to the Optionee the right and option (the "Option") to
purchase from the Company, at a price of $10.40 per share, up to, but not
exceeding in the aggregate, 20,000 shares of the Company's Class B Common Stock,
par value $.001 share (the "Stock"). Any share of Stock purchased pursuant to
this Agreement shall be subject to the Stockholders' Agreement dated February
18, 1988, by and between the Company and certain of its stockholders, as amended
from time to time, and any successor agreement (the "Stockholders' Agreement"),
a copy of which the Optionee acknowledges has been delivered to him previously.
The Optionee acknowledges that the Stockholders' Agreement provides that upon
exercise of this Option, the Optionee shall, subject to the remaining provisions
of the Stockholders' Agreement, be required to resell to the Company any shares
of stock issued upon exercise of this Option. This Option shall not constitute
an incentive stock option, within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended.
2. Option Exercise Period. Subject to the terms and conditions set forth
herein, the Optionee may exercise all or part of this Option (i) at any time or
from time to time on or after the earliest of the following events: (a) March
31, 1998; (b) the death or termination of employment with the Company as a
result of disability (as defined in the Employment Agreement between the Company
and Optionee, as amended from time to time (the "Employment Agreement")) of the
Optionee; (c) a Change of Control (as defined in the Stock Option Plan); (d) in
the event that the Optionee ceases to be employed by the Company prior to the
date that the Optionee ceases to be employed by the Company prior to the date
that the Option becomes exercisable by reason of the Optionee having been
terminated without "Cause" (as defined in the Employment Agreement), the date,
if at all, that the Company notifies the Optionee in writing that the Optionee
has breached in any material respect a Restrictive Covenant (as hereinafter
defined) (without taking into account the reason why the Optionee is no longer
so employed); or (e) the occurrence of such other events as the Company's
Compensation Committee (the "Committee") may determine from time to time, but
(ii) in no event later than April 1, 2002.
3. Events Which Result In Early Termination of Option.
a. If prior to the date that the Option becomes exercisable, either
the Company shall terminate Optionee's employment with the Company for Cause or
the Optionee terminates his employment with the Company in breach of the terms
of his Employment Agreement, the Option shall immediately terminate.
b. If on or after the date that the Option becomes exercisable the
Optionee shall cease to be employed by the Company for Cause, the Option shall
terminate thirty days thereafter. If the Optionee breaches in any material
respect a Restrictive Covenant as provided in paragraph 2(i)(d) hereof, the
Option shall terminate thirty days after the Company furnishes the Optionee with
written notice of such breach.
c. If the Optionee shall die or terminate employment with the Company
for disability, the Option shall terminate on the first anniversary of the
Optionee's date of death or termination of employment for disability, as
applicable. If the Optionee shall die, the executor or administrator of the
estate of the Optionee or the person or persons to whom the Option shall have
been validly transferred by the executor or administrator pursuant to will or
the laws of descent and distribution (as established by proof which is
reasonably satisfactory to the Committee) shall have the right, within one year
from the date of the Optionee's death, to exercise the Option subject to any
other limitation contained herein on the exercise of the Option in effect on the
date of exercise.
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d. Subject to paragraph 3 b. hereof, if the Optionee shall breach in
any material respect any restrictive covenant contained in the Employment
Agreement pertaining to (i) solicitation of or rendering of services for or on
behalf of any then past or present client of the Company or any of its
subsidiaries, (ii) solicitation, inducement or hiring of any then past or
present employees of the Company or any of its subsidiaries, (iii) otherwise
engaging in the advertising, public relations, promotional, marketing, research
or any related business, whether for or on behalf of another advertising or
public relations agency, or of any product competitive with any product
represented by the Company or any of its subsidiaries, or (iv) otherwise
restricting the use of Optionee's name (the restrictive covenants referred to in
(i) through (iv) being "Restrictive Covenants"), this Option shall immediately
terminate thirty days after the Company furnishes Optionee with written notice
of such breach provided that Optionee fails to cure said breach within said
thirty day period.
e. In no event shall the occurrence of any of the events specified in
this paragraph 3 result in the extension of the Option exercise period beyond
the date specified in clause (ii) of paragraph 2 hereof.
4. Method of Exercising Option. The Optionee may exercise the Option only
by delivering to the Company a written, signed notice stating the whole number
of shares that the Optionee has elected to purchase at that time from the
Company and by making full payment of the purchase price of the shares shall be
made in cash, by certified or bank cashier's check payable to the order of the
Company, by wire transfer of immediately available funds to an account of the
Company designated by the Company, or by any other means acceptable to the
Company.
5. Issuance of Shares. As promptly as practical after receipt of such
written notification and full payment of such purchase price as provided in
paragraph 4 hereof, the Company shall issue or transfer to the Optionee the
number of shares with respect to which the Option has been so exercised, and
shall deliver to the Optionee a certificate or certificates therefor, registered
in the Optionee's name. Notwithstanding the foregoing, in no event shall the
Company be required to issue or transfer any shares hereunder (i) until counsel
for the Company determines that the Company has complied with all applicable
securities or other laws and/or all requirements of any national securities
exchange on which the Stock may then be listed, (ii) unless the Optionee
supplies the Company with all information and documentation reasonably required
by counsel to the Company in order to assure the Company that such issuance
would comply with all such laws and requirements and (iii) unless the Optionee
reimburses the Company for any tax withholding required and
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supplies the Company with such information and data as the Company may deem
necessary. Any determination in this connection by the Committee shall be final,
binding and conclusive. The Company shall take all reasonable steps necessary to
issue and/or transfer such shares to Optionee and to comply with all applicable
securities and other laws pertaining thereto (provided, however, that the
Company shall in no event be obligated to register any securities pursuant to
the Securities Act of 1933 (as now in effect or as hereafter amended)).
6. Non-Transferability. The Option is not transferable by the Optionee
otherwise than by will or the laws of descent and distribution and is
exercisable during the Optionee's lifetime only by him. No assignment or
transfer of the Option, or of the rights represented thereby, whether voluntary
or involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in an assignee or transferee any interest
or right herein whatsoever, but immediately upon such assignment or transfer or
purported assignment or transfer the Option shall terminate and become of no
further effect.
7. Rights as Stockholder. The Optionee or a transferee of the Option
shall have no rights as a stockholder with respect to any share covered by the
Option until he shall have become the holder of record of such share, and
(except as provided in ARTICLE XI of the Plan) no adjustment shall be made or
dividends or distributions or other rights in respect of such share for which
the record date is prior to the date upon which he shall become the holder of
record thereof.
8. Employment Rights. Nothing contained herein shall confer on Optionee
any right to continue in the employ of the Company or any subsidiary or, subject
to the terms of the Employment Agreement, to interfere in any way with the right
of the Company or any subsidiary to terminate the Optionee's employment at any
time.
9. Construction. The word "Company" when used herein with reference to
employment shall include subsidiaries of the Company. Except as clearly required
by the context, the masculine gender shall include the feminine and the singular
shall include the plural. Whenever the word "Optionee" is used in any provision
of this Agreement under circumstances where the provision should logically be
construed to apply to the executors, the administrators, or the person or
persons to whom the Option may be transferred by will or by the laws of descent
and distribution, the word "Optionee" shall be deemed to include such person or
persons.
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10. Notice. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as herein provided;
provided that, unless and until some other address be so designated, all notices
or communications by the Optionee to the Company shall be mailed or delivered to
the Company at its executive offices at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Chief Financial Officer, and all notices or communications by
the Company to the Optionee may be given to the Optionee personally or may be
mailed to him at the address shown below his signature to this Agreement.
11. Governing Law. The validity, construction and performance of this
Agreement shall be governed by and interpreted in accordance with the internal
laws of the State of New York, without reference to the conflicts of law
provisions thereof, except insofar as they may require application of the
corporation law of the State of Delaware.
12. Execution. The Optionee shall execute this Agreement and return it to
the Company within ten days after the mailing or delivery by the Company of this
Agreement. If the Optionee shall fail to execute and return this Agreement
within said ten day period, the Option shall automatically terminate.
13. Stock Option Plan Amendments. To the extent that any of the
provisions of this Agreement are contrary or inconsistent with the Stock Option
Plan, by its execution and delivery of this Agreement, the Company hereby
acknowledges and agrees that it has so amended the Stock Option Plan with
respect to the Optionee. The Company shall not amend the Stock Option Plan in
any way that adversely affects or diminishes Optionee's rights and privileges
thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BOZELL, JACOBS, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
By:
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Valentine ▇. ▇▇▇▇▇▇
Vice Chairman of the Board
of Chief Financial Officer
Address of Optionee:
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