<PAGE>
As filed with the Securities and Exchange Commission on April 24, 2000
Registration No.
333-_________
===============================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------------
TCI SATELLITE ENTERTAINMENT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-1299995
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7600 EAST ORCHARD ROAD
SUITE 330-SOUTH
ENGLEWOOD, COLORADO 80111
(Address of Principal Executive Offices) (Zip Code)
TCI SATELLITE ENTERTAINMENT, INC.
1997 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
GARY S. HOWARD
TCI SATELLITE ENTERTAINMENT, INC.
7600 EAST ORCHARD ROAD
SUITE 330-SOUTH
ENGLEWOOD, COLORADO 80111
(Name and address of agent for service)
(303) 268-5440
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
===================================================================================================================
<S> <C> <C> <C> <C>
TITLE OF EACH CLASS OF AMOUNT PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE MAXIMUM MAXIMUM REGISTRATION
TO BE REGISTERED REGISTERED (1) OFFERING AGGREGATE FEE
PRICE OFFERING
PER SHARE (2) PRICE (2)
---------------------- -------------- ------------- --------- ------------
Series A Common Stock, par value $1.00
per share 500,000 SHARES $9.625 $4,812,500 $1,271
===================================================================================================================
</TABLE>
(1) PURSUANT TO RULE 416(a) OF THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), THIS REGISTRATION STATEMENT SHALL BE DEEMED TO COVER
ADDITIONAL SECURITIES THAT MAY BE OFFERED OR ISSUED TO PREVENT DILUTION
RESULTING FROM STOCK SPLITS, STOCK DIVIDENDS OR SIMILAR TRANSACTIONS.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION
FEE PURSUANT TO RULE 457(h) AND RULE 457(c) OF THE ACT ON THE BASIS OF
THE AVERAGE OF THE HIGH AND LOW SALES PRICES REPORTED ON THE OTC
BULLETIN BOARD ON APRIL 17, 2000.
<PAGE>
===============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information specified in Part I of
this Form will be sent or given to participants as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in the registration
statement pursuant to Item 3 of Part II of this Form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
TCI Satellite Entertainment, Inc. (the "Company") hereby incorporates
by reference in this Registration Statement the following documents filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (File No. 000-21317):
(i) The Company's registration statement on Form 10, as amended by
Form 10/A (Amendments No. 1, 2 and 3).
(ii) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999.
(iii) The Company's Current Report on Form 8-K, dated March 22,
2000.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and to be a part hereof from the respective
dates of the 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides,
generally, that a corporation shall have the power to 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 (except actions by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation against all expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
II-1
<PAGE>
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. A corporation may similarly indemnify such person for
expenses actually and reasonably incurred by such person in connection with the
defense or settlement of any action or suit by or in the right of the
corporation, provided such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, in the case of claims, issues and matters as to which such
person shall have been adjudged liable to the corporation, provided that a court
shall have determined, upon application, that, despite the adjudication of
liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law provides,
generally, that the certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision may not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation 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 Title 8 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. No
such provision may eliminate or limit the liability of a director for any act or
omission occurring prior to the date when such provision became effective.
Article V, Section E of the Company's Restated Certificate of
Incorporation provides as follows:
"1. LIMITATION ON LIABILITY.
To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be
amended, a director of the Corporation shall not be liable to
the Corporation or any of its stockholders for monetary
damages for breach of fiduciary duty as a director. Any repeal
or modification of this paragraph 1 shall be prospective only
and shall not adversely affect any limitation, right or
protection of a director of the Corporation existing at the
time of such repeal or modification.
2. INDEMNIFICATION.
(a) RIGHT TO INDEMNIFICATION. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be
amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (a "proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, is or was
a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership,
joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans,
against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such
person. Such right of indemnification shall inure whether or
not the claim asserted is based on matters which antedate the
adoption of this
II-2
<PAGE>
Section E. The Corporation shall be required to indemnify
or make advances to a person in connection with a
proceeding (or part thereof) initiated by such person only
if the proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation.
(b) PREPAYMENT OF EXPENSES. The Corporation shall pay the
expenses (including attorneys' fees) incurred by a director or
officer in defending any proceeding in advance of its final
disposition, PROVIDED, HOWEVER, that the payment of expenses
incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt
of an undertaking by the director or officer to repay all
amounts advanced if it should be ultimately determined that
the director or officer is not entitled to be indemnified
under this paragraph or otherwise.
(c) CLAIMS. If a claim for indemnification or payment of
expenses under this paragraph is not paid in full within 60
days after a written claim therefor has been received by the
Corporation, the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the
requested indemnification or payment of expenses under
applicable law.
(d) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this paragraph shall not be exclusive of any other
rights which such person may have or hereafter acquire under
any statute, provision of this Certificate, the Bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise.
(e) OTHER INDEMNIFICATION. The Corporation's obligation, if
any, to indemnify any person who was or is serving at its
request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust,
enterprise or nonprofit entity shall be reduced by any
amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust,
enterprise or nonprofit entity.
3. AMENDMENT OR REPEAL.
Any amendment, modification or repeal of the foregoing
provisions of this Section E shall not adversely affect any
right or protection hereunder of any person in respect of any
act or omission occurring prior to the time of such amendment,
modification or repeal."
Article II, Section 2.9 of the Company's Amended and Restated Bylaws
also contains an indemnity provision, requiring the Company to indemnify members
of the Board of Directors and officers of the Company and their respective
heirs, personal representatives and successors in interest for or on account of
any action performed on behalf of the Company, to the fullest extent provided by
the laws of the State of Delaware and the Company's Restated Certificate of
Incorporation, as then or thereafter in effect.
Certain officers of the Company, who were officers and directors of
Tele-Communications, Inc. ("TCI") and/or TCI Communications, Inc. ("TCIC"),
prior to the distribution of the Company's
II-3
<PAGE>
Series A Common Stock and Series B Common Stock to holders of
Tele-Communications, Inc. Series A TCI Group Common Stock and
Tele-Communications, Inc. Series B TCI Group Common Stock, respectively, on
December 4, 1996 received undertakings of indemnification from TCI and/or
TCIC. Such undertakings of indemnification have been assumed by AT&T
Broadband, LLC.
The Company has and may continue to purchase liability insurance
policies covering its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of the
Company's Registration Statement on Form 10, as amended by
Form 10/A (Amendments No. 1, 2 and 3) (Commission File No.
000- 21317)).
4.2 Amended and Restated Bylaws of the Company (incorporated
herein by reference to Exhibit 3.2 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1997
(Commission File No. 000-21317)).
4.3 Specimen Stock Certificate for Series A Common Stock, par
value $1.00 per share, of the Company (incorporated herein by
reference to Exhibit 4.1 of the Company's Registration
Statement on Form 10, as amended by Form 10/A (Amendments No.
1, 2 and 3) (Commission File No. 000-21317)).
4.4 TCI Satellite Entertainment, Inc. 1997 Non employee
Director Stock Option Plan.
4.5 Form of Option Agreement.
5 Opinion of Baker Botts L.L.P.
23.1 Consent of Baker Botts L.L.P. (included in Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney (included herein on page II-8).
ITEM 9. UNDERTAKINGS.
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:
II-4
<PAGE>
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of the prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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 (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities 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.
(4) 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 section 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 provisions described under Item 6 above, 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 Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses 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 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
II-5
<PAGE>
whether such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final adjudication of
such issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Greenwood Village, State of Colorado, on
April 24, 2000.
TCI SATELLITE ENTERTAINMENT, INC.
By: /s/ KENNETH G. CARROLL
----------------------
Name: Kenneth G. Carroll
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
II-7
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gary S. Howard, Kenneth G. Carroll and
Marc Leaf, Esq., and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities, to sign any or all 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
attorneys-in-fact and agents and each of them full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, to all intents and purposes and as fully as they might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or their substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed by the following persons
(which persons constitute a majority of the Board of Directors) in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ GARY S. HOWARD Chief Executive Officer April 17, 2000
- -----------------------
(Gary S. Howard) (Principal Executive Officer);
Director
/s/ JOHN C. MALONE Chairman of the Board and April 24, 2000
- -----------------------
(John C. Malone) Director
/s/ DAVID P. BEDDOW Director April 10, 2000
----------------------
(David P. Beddow)
/S/ JOHN W. GODDARD Director April 10, 2000
- -----------------------
(John W. Goddard)
/s/ LEO J. HINDERY Director April 24, 2000
- -----------------------
(Leo J. Hindery)
/s/ WILLIAM E. JOHNSON Director April 24, 2000
- -----------------------
(William E. Johnson)
/s/ KENNETH G. CARROLL Senior Vice President, April 24, 2000
---------------------- Chief Financial Officer and
(Kenneth G. Carroll) Treasurer (Principal Financial
and Accounting Officer)
</TABLE>
II-8
<PAGE>
INDEX TO EXHIBITS
Exhibit
NUMBER DESCRIPTION
------ -----------
4.1 Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of
the Company's Registration Statement on Form 10, as
amended by Form 10/A (Amendments No. 1, 2 and 3)
(Commission File No. 000-21317)).
4.2 Amended and Restated Bylaws of the Company
(incorporated herein by reference to Exhibit 3.2 of
the Company's Annual Report on Form 10-K for the year
ended December 31, 1997 (Commission File No.
000-21317)).
4.3 Specimen Stock Certificate for Series A Common Stock,
par value $1.00 per share, of the Company
(incorporated herein by reference to Exhibit 4.1 of
the Company's Registration Statement on Form 10, as
amended by Form 10/A (Amendments No. 1, 2 and 3)
(Commission File No. 000-21317)).
4.4 TCI Satellite Entertainment, Inc. 1997
Nonemployee Director Stock Option Plan.
4.5 Form of Option Agreement.
5 Opinion of Baker Botts L.L.P.
23.1 Consent of Baker Botts L.L.P. (included in Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney (included herein on page II-8).
<PAGE>
Exhibit 4.4
1997 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
OF
TCI SATELLITE ENTERTAINMENT, INC.
1. PURPOSE OF THE PLAN. This Nonemployee Director Stock Option
Plan (the "Plan") is intended as an incentive to retain and attract persons of
training, experience and ability to serve as independent directors on the Board
of Directors of TCI Satellite Entertainment, Inc., a Delaware corporation (the
"Company"), to encourage the sense of proprietorship of such persons and to
stimulate the active interest of such persons in the development and financial
success of the Company. It is further intended that the options granted pursuant
to this Plan (the "Options") will be nonqualified options within the meaning of
Section 83 of the Internal Revenue Code of 1986, as amended (the "Code").
2. EFFECTIVE DATE. This Plan shall be effective as of the date
(the "Effective Date") it was approved by the Board of Directors of the Company;
provided however, that all options granted pursuant to this Plan are subject to
the approval of the Plan by the stockholders of the Company.
3. DESIGNATION OF PARTICIPANTS; AUTOMATIC GRANT OF OPTIONS.
Each director of the Company who is not an employee of the Company or any
Subsidiary (as hereinafter defined) of the Company (any such director being
hereinafter referred to as a "Nonemployee Director") shall be granted Options as
described hereunder. Each Nonemployee Director who is a director as of the
Effective Date shall automatically be granted Options to purchase 50,000 shares
of the Series A Common Stock of the Company (the "Common Stock") at the
Effective Date. Thereafter, each individual who becomes a Nonemployee Director
shall automatically be granted Options to purchase 50,000 shares of Common Stock
(subject to adjustment as provided in Paragraph 10) on the date such person
first becomes a Nonemployee Director. Notwithstanding the foregoing, in the case
of any grant of Options made on a date subsequent to the Effective Date, such
grant shall only be made if the number of shares then subject to future grant
under this Plan is sufficient to make all automatic grants required to be made
pursuant to this Plan on such date of grant. As used herein, the term
"Subsidiary" of the Company means any present or future subsidiary (as defined
in Section 424(f) of the Code) of the Company, or any business entity in which
the Company owns, directly or indirectly, 50% or more of the voting, capital or
profits interests. An entity shall be deemed a subsidiary of the Company for
purposes of this definition only for such periods as the requisite ownership or
control relationship is maintained.
-1-
<PAGE>
4. OPTION AGREEMENT. Each Option granted hereunder shall be
embodied in a written option agreement ("Option Agreement"), which shall be
subject to the terms and conditions set forth above and shall be signed by the
Optionee (as hereinafter defined) and by the Chief Executive Officer, the Chief
Operating Officer, or any Vice President of the Company for and on behalf of the
Company. As used herein, the term "Optionee" means any Nonemployee Director to
whom Options are granted hereunder.
5. COMMON STOCK RESERVED FOR THE PLAN. Subject to adjustment
as provided in Paragraph 10 hereof, a total of 500,000 shares of Common Stock
shall be reserved for issuance upon the exercise of Options granted pursuant to
this Plan. The Board of Directors and the appropriate officers of the Company
shall from time to time take whatever actions are necessary to execute,
acknowledge, file and deliver any documents required to be filed with or
delivered to any governmental authority or any stock exchange or transaction
reporting system on which shares of Common Stock are listed or quoted in order
to make shares of Common Stock available for issuance to an Optionee pursuant to
this Plan. Common Stock subject to Options that are forfeited or terminated or
expire unexercised shall immediately become re-available for the granting of
Options hereunder, to the extent that such forfeited, terminated or expired
Options were unexercised at the time of such forfeiture, termination or
expiration and did not otherwise result in the issuance of any shares of Common
Stock to the Optionee or any other person.
6. OPTION PRICE.
(a) The purchase price of each share of Common Stock that is
subject to an Option granted pursuant to this Plan shall be the Fair Market
Value (as defined in Paragraph 6(b)) of such share of Common Stock on the date
the Option is granted.
(b) The Fair Market Value of a share of Common Stock on a
particular date means the last sale price (or, if no last sale price is
reported, the average of the high bid and low asked prices) for a share of
Common Stock, as applicable, on such day (or, if such day is not a trading day,
on the next preceding trading day) as reported on the Nasdaq Stock Market or, if
not reported on the Nasdaq Stock Market, as quoted by the National Quotation
Bureau Incorporated, or if the Common Stock is listed on an exchange, on the
principal exchange on which the Common Stock is listed.
7. OPTION PERIOD. Each Option granted pursuant to this Plan
shall terminate and be of no force and effect with respect to any shares of
Common Stock not purchased by the Optionee at 5 p.m., Denver, Colorado time, on
the earliest to occur of the following: (a) the day that immediately precedes
the tenth anniversary of the date upon which the Option is granted; (b) the
first business day following the expiration of the one-year period which begins
on the date upon which the Optionee ceases to be a Director for any reason other
than voluntary termination of Director status; or (c) the first business day
following the expiration of the three-month period which begins on the date upon
which the Optionee voluntarily terminates his Director status.
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<PAGE>
8. EXERCISE OF OPTIONS.
(a) Options granted pursuant to this Plan shall be
exercisable, on a cumulative basis, as follows: (i) with respect to 20% of the
total number of shares of Common Stock initially subject to any Option, such
Option shall be exercisable on the first anniversary of the date of grant; and
(ii) with respect to the remaining shares of Common Stock subject to any Option,
such Option shall be exercisable with respect to an additional 20% of the total
number of shares initially subject thereto as of the second, third, fourth and
fifth anniversaries of the date of the grant.
(b) An Option may be exercised solely by the Optionee during
his lifetime or after his death by the person or persons entitled thereto under
his will or the laws of descent and distribution, subject to any enforceable
provisions of a QDRO as defined in Section 9 below.
(c) In the event that, prior to the occurrence of any Change
of Control, an Optionee voluntarily ceases his status as a Director, an Option
granted to such Optionee may be exercised only to the extent such Option was
exercisable at the time he ceased to serve in such capacity.
(d) In the event that an Optionee ceases to serve as a
Director for any reason other than voluntary termination of Director status, at
a time when an Option granted hereunder is still in force and unexpired under
the terms of Paragraph 7 hereof, the vesting and exercisability of each such
unmatured Option shall be accelerated. Such acceleration shall be effective
immediately prior to the effective termination of Director status and each
Option so accelerated shall be exercisable in full for so long as it is still in
force and unexpired under the terms of Paragraph 7 hereof.
(e) Upon the occurrence of a Change in Control, as defined in
Paragraph 10(c), the vesting and exercisability of all Options previously
granted and still in force and unexpired under the terms of Paragraph 7 hereof
shall be accelerated effective as of such Change in Control.
(f) The purchase price of the shares as to which an Option is
exercised shall be paid in full at the time of the exercise. The method or
methods of payment of the purchase price for the shares to be purchased upon
exercise of an Option shall be determined by the Board of Directors and may
consist of (i) cash, (ii) check, (iii) promissory note, (iv) whole shares of
Common Stock or of Series B Common Stock of the Company already owned by the
Optionee, (v) the withholding of shares of Common Stock issuable upon such
exercise of the Option, (vi) the delivery, together with a properly executed
exercise notice, of irrevocable instructions to a broker to deliver promptly to
the Company the amount of sale or loan proceeds required to pay the purchase
price, (vii) any combination of the foregoing methods of payment, or (viii) such
other consideration and method of payment as may be permitted for the issuance
of shares under the Delaware General Corporation Law. The permitted method or
methods of payment of the amounts payable upon exercise of an Option, if other
than in cash, shall be set forth in the applicable Agreement and may be subject
to such conditions as the Board of Directors deems
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<PAGE>
appropriate. Without limiting the generality of the foregoing, if an Optionee is
permitted to elect to have shares of Common Stock issuable upon exercise of an
Option withheld to pay all or any part of the amounts payable in connection with
such exercise, then the Board of Directors shall have the sole discretion to
approve or disapprove such election, which approval or disapproval shall be
given after such election is made. No holder of an Option shall be, or have any
of the rights or privileges of, a stockholder of the Company in respect of any
shares subject to any Option unless and until certificates evidencing such
shares shall have been issued by the Company to such holder.
9. ASSIGNABILITY. No Option shall be assignable or otherwise
transferable except by will or the laws of descent and distribution or pursuant
to a qualified domestic relations order ("QDRO") as defined by the Code or Title
I of the Employee Retirement Income Security Act, or the rules thereunder. Any
attempted assignment of an Option in violation of this Paragraph 9 shall be null
and void.
10. ADJUSTMENTS.
(a) The existence of outstanding Options shall not affect in
any manner the right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the capital stock of the Company or its business or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred stock
or other debt or equity securities (whether or not such issue is prior to, on a
parity with or junior to the Common Stock) or the dissolution or liquidation of
the Company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding of any kind, whether or not
of a character similar to that of the acts or proceedings enumerated above.
(b) If the Company subdivides its outstanding shares of Common
Stock into a greater number of shares of Common Stock (by stock dividend, stock
split, reclassification or otherwise) or combines its outstanding shares of
Common Stock into a smaller number of shares of Common Stock (by reverse stock
split, reclassification or otherwise), or if the Board of Directors determines
that any stock dividend, extraordinary cash dividend, reclassification,
recapitalization, reorganization, split-up, spin-off, combination, merger,
consolidation, exchange of shares, warrants or rights offering to purchase
Common Stock, or other similar corporate event affects the Common Stock such
that an adjustment is required in order to preserve the benefits or potential
benefits intended to be made available under this Plan, then the Board of
Directors shall, in its sole discretion and in such manner as the Board of
Directors may deem equitable and appropriate, make such adjustments to any or
all of (i) the number and kind of shares reserved under this Plan, (ii) the
number and kind of shares subject to any outstanding Options, and (iii) the
exercise price with respect to any outstanding Options, PROVIDED, HOWEVER, that
the number of shares subject to any Option shall always be a whole number. The
Board of Directors may, if deemed appropriate, provide for a cash payment to any
Optionee in connection with any adjustment made pursuant to this Section 10(b).
In the event of a corporate merger, consolidation, acquisition of property or
stock, reorganization, liquidation or similar transaction, the Board of
Directors shall be authorized to issue or assume stock options by means of
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<PAGE>
substitution of new options for previously issued options or an assumption of
previously issued options, or to make provision for the acceleration of the
exercisability of, or lapse of restrictions with respect to, the termination of
unexercised options in connection with such transaction.
(c) An Option shall become fully exercisable upon a Change in
Control of the Company. As used herein, "Change in Control" means the occurrence
of any of the following events: (i) after the Effective Date, any person (as
such term is defined in Sections 13(d)(3) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), corporation or other
entity (other than the Company, any Subsidiary, any employee benefit plan
sponsored by the Company or any Subsidiary, or any Controlling Person) shall
become the "beneficial owner" (as such term is defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
20% or more of the combined voting power of the then outstanding securities of
the Company ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors (calculated
as provided in Rule 13d-3(d) under the Exchange Act in the case of rights to
acquire the Company's securities); (ii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the entire Board of
Directors cease for any reason to constitute a majority thereof unless the
election, or the nomination for election, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period. For purposes of this definition,
"Controlling Person" means each of (a) the Chairman of the Board, the President
and each of the directors of the Company as of the Effective Date of this Plan,
(b) John C. Malone, (c) the respective family members, estates and heirs of each
of the persons referred to in clauses (a) and (b) above, and of Bob Magness, and
any trust or other investment vehicle for the primary benefit of the persons
referred to in clauses (a) and (b) above, and of Bob Magness, or their
respective family members or heirs and (d) Kearns-Tribune Corporation, a
Delaware corporation. As used with respect to any person, the term "family
member" means the spouse, siblings and lineal descendants of such person.
11. PURCHASE FOR INVESTMENT. Unless the Options and shares of
Common Stock covered by this Plan have been registered under the Securities Act
of 1933, as amended, each person exercising an Option under this Plan may be
required by the Company to give a representation in writing in form and
substance satisfactory to the Company to the effect that he is acquiring such
shares for his own account for investment and not with a view to, or for sale in
connection with, the distribution of such shares or any part thereof.
12. TAXES. The Company may make such provisions as it may deem
appropriate for the withholding of any taxes that it determines is required in
connection with any Options granted to any Optionee hereunder.
13. AMENDMENTS OR TERMINATION. The Board of Directors of the
Company may amend, alter or discontinue this Plan, except that (a) no amendment
or alteration that would
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<PAGE>
impair the rights of any Optionee under any Option that he has been granted
shall be made without his consent, (b) no amendment or alteration shall be
effective prior to approval by the Company's stockholders to the extent such
approval is then required pursuant to Rule 16b-3 (or any successor provision)
under the Exchange Act in order to preserve the applicability of any exemption
provided by such Rule to any Option then outstanding (unless the holder of such
Option consents) or to the extent stockholder approval is otherwise required by
applicable legal requirements, and (c) the Plan shall not be amended more than
once every six months to the extent such limitation is required by Rule
16b-3(c)(2)(ii) (or any successor provision) under the Exchange Act as then in
effect.
14. GOVERNMENT REGULATIONS. This Plan, and the granting and
exercise of Options hereunder, and the obligation of the Company to sell and
deliver shares of Common Stock under such Options, shall be subject to all
applicable laws, rules and regulations, and to such approvals on the part of any
governmental agencies or national securities exchanges or transaction reporting
systems as may be required.
15. GOVERNING LAW. This Plan and all determinations made and
actions taken pursuant hereto, to the extent not otherwise governed by mandatory
provisions of the Code or the securities laws of the United States, shall be
governed by and construed in accordance with the laws of the State of Delaware.
16. MISCELLANEOUS. The granting of any Option shall not impose
upon the Company, the Board of Directors of the Company or any other directors
of the Company any obligation to nominate any Optionee for election as a
director, and the right of the stockholders of the Company to remove any person
as a director of the Company shall not be diminished or affected by reason of
the fact that an Option has been granted to such person.
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<PAGE>
Exhibit 4.5
1997 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
OF TCI SATELLITE ENTERTAINMENT, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made as of February 3, 1997, by and
between TCI SATELLITE ENTERTAINMENT, INC., a Delaware corporation (the
"Company") and the person signing adjacent to the caption "Grantee" on the
signature page hereof ("Grantee").
The Company has adopted the 1997 Nonemployee Director Stock Option Plan
of TCI Satellite Entertainment, Inc. (the "Plan"), a copy of which is appended
to this Agreement as Exhibit A and by this reference made a part hereof, for the
benefit of independent directors on the Board of Directors of the Company.
Options granted pursuant to the Plan and this Agreement are subject to approval
of the Plan by the stockholders of the Company. Capitalized terms used and not
otherwise defined herein shall have the meaning ascribed thereto in the Plan.
Pursuant to the Plan, the option hereby granted is provided to Grantee
as additional remuneration for services rendered, to encourage Grantee to remain
a director of the Company and to increase Grantee's personal interest in the
continued success and progress of the Company.
NOW, THEREFORE, the Company and Grantee agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions herein, the
Company grants to the Grantee during the period commencing on February 3, 1997
(the "Option Date") and expiring at 5 p.m., Denver, Colorado time ("Close of
Business") February 2, 2007 (the "Option Term"), subject to earlier termination
as provided in paragraph 5 below, an option to purchase from the Company, at the
price per share set forth on Schedule 1 hereto (the "Option Price"), the number
of shares of Series A Common Stock of the Company set forth on said Schedule 1
(the "Option Shares"). The Option Price and Option Shares are subject to
adjustment pursuant to paragraph 8 below. This option is as a "Nonqualified
Stock Option" and is hereinafter referred to as the "Option."
2. CONDITIONS OF EXERCISE. The Option is exercisable only in accordance
with the conditions stated in this paragraph and paragraph 8(b).
(a) Except as otherwise provided in paragraph 8(b) or in the
last sentence of this subparagraph (a), the Option shall not be
exercisable until February 3, 1998, and on such date and thereafter the
Option may only be exercised to the extent the Option Shares have
become available for purchase in accordance with the following
schedule:
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<PAGE>
<TABLE>
<CAPTION>
DATE PERCENTAGE OF OPTION SHARES
---- AVAILABLE FOR PURCHASE
---------------------------
<S> <C>
February 3, 1998 20%
February 3, 1999 40%
February 3, 2000 60%
February 3, 2001 80%
February 3, 2002 100%
</TABLE>
Notwithstanding the foregoing, all Option Shares shall become available
for purchase if Grantee's status as a Director shall cease for any
reason other than voluntary termination of Director status by Grantee.
(b) To the extent the Option becomes exercisable, such Option
may be exercised in whole or in part (at any time or from time to time,
except as otherwise provided herein) until expiration of the Option
Term or earlier termination of the Option pursuant to paragraph 5.
3. MANNER OF EXERCISE. The Option shall be considered exercised (as to
the number of Option Shares specified in the notice referred to in subparagraph
(a) below) on the latest of (i) the date of exercise designated in the written
notice referred to in subparagraph (a) below, (ii) if the date so designated is
not a business day, the first business day following such date or (iii) the
earliest business day by which the Company has received all of the following:
(a) Written notice to the Assistant Secretary of the Company
designating, among other things, the date of exercise and the number of
Option Shares to be purchased; and
(b) Payment of the Option Price for each Option Share to be
purchased in cash or by means of tendering theretofore owned Series A
Common Stock or a combination thereof; PROVIDED, HOWEVER, that any
shares of Series A Common Stock delivered in payment of the Option
Price shall be shares that the Grantee has owned for a period of at
least six months prior to the date of exercise.
4. DELIVERY BY THE COMPANY. As soon as practicable after receipt of all
items referred to in paragraph 3, the Company shall deliver to the Grantee
certificates issued in Grantee's name for the number of Option Shares purchased
by exercise of the Option. If delivery is by mail, delivery of shares of Series
A Common Stock shall be deemed effected for all purposes when a stock transfer
agent of the Company shall have deposited the certificates in the United States
mail, addressed to the Grantee, and any cash payment shall be deemed effected
when a Company check, payable to Grantee and in an amount equal to the amount of
the cash payment, shall have been deposited in the United States mail, addressed
to the Grantee.
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<PAGE>
5. EARLY TERMINATION OF OPTION. The Option shall terminate, prior to
the expiration of the Option Term, at the time specified below:
(a) If Grantee ceases to serve as a Director during the Option
Term by reason of voluntary termination of Director status by Grantee,
then the Option shall terminate at the Close of Business on the first
business day following the expiration of the three-month period which
began on the date of termination of Grantee's status as a Director;
(b) If Grantee ceases to serve as a Director during the Option
Term for any reason other than voluntary termination of Director status
by Grantee, the Option shall terminate at the Close of Business on the
first business day following the expiration of the one-year period
which began on the date of termination of Grantee's status as a
Director.
In any event in which the Option remains exercisable for a
period of time following the voluntary termination of Nonemployee Director
status by Grantee, the Option may be exercised during such period of time only
to the extent the Option was exercisable as provided in paragraph 2 above on
such date of termination of Grantee's status as a Director. Notwithstanding any
period of time referenced in this paragraph 5 or any other provision of this
paragraph that may be construed to the contrary, the Option shall in any event
terminate upon the expiration of the Option Term.
6. NONTRANSFERABILITY OF OPTION. During Grantee's lifetime, the Option
is not transferable (voluntarily or involuntarily) other than pursuant to a
qualified domestic relations order and, except as otherwise required pursuant to
a qualified domestic relations order, is exercisable only by the Grantee or
Grantee's court appointed legal representative. The Grantee may designate a
beneficiary or beneficiaries to whom the Option shall pass upon Grantee's death
and may change such designation from time to time by filing a written
designation of beneficiary or beneficiaries with the Assistant Secretary of the
Company on the form annexed hereto as Exhibit B or such other form as may be
prescribed for purposes of the Plan, provided that no such designation shall be
effective unless so filed prior to the death of Grantee. If no such designation
is made or if the designated beneficiary does not survive the Grantee's death,
the Option shall pass by will or the laws of descent and distribution. Following
Grantee's death, the Option, if otherwise exercisable, may be exercised by the
person to whom such Option passes accordingly to the foregoing and such person
shall be deemed the Grantee for purposes of any applicable provisions of this
Agreement.
7. NO STOCKHOLDER RIGHTS. The Grantee shall not be deemed for any
purpose to be, or to have any of the rights of, a stockholder of the Company
with respect to any shares of Series A Common Stock as to which this Agreement
relates until such shares shall have been issued to Grantee by the Company.
Furthermore, the existence of this Agreement shall not affect in any way the
right or power of the Company or its stockholders to accomplish any corporate
act.
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<PAGE>
8. ADJUSTMENTS.
(a) The Option shall be subject to adjustment (including,
without limitation, as to the number of Option Shares and the Option
Price per share) in the sole discretion of the Board of Directors and
in such manner as the Board of Directors may deem equitable and
appropriate in connection with the occurrence of any of the events
described in Section 10(b) of the Plan following the Option Date.
(b) In the event of any Change in Control, the Option shall
become exercisable in full without regard to paragraph 2(a).
9. RESTRICTIONS IMPOSED BY LAW. Without limiting the generality of
Section 14 of the Plan, the Grantee agrees that Grantee will not exercise the
Option and that the Company will not be obligated to deliver any shares of
Series A Common Stock or make any cash payment, if counsel to the Company
determines that such exercise, delivery or payment would violate any applicable
law or any rule or regulation of any governmental authority or any rule or
regulation of, or agreement of the Company with, any securities exchange or
association upon which the Series A Common Stock is listed or quoted. The
Company shall in no event be obligated to take any affirmative action in order
to cause the exercise of the Option or the resulting delivery of shares of
Series A Common Stock or other payment to comply with any such law, rule,
regulation or agreement.
10. NOTICE. Unless the Company notifies the Grantee in writing of a
different procedure, any notice or other communication to the Company with
respect to this Agreement shall be in writing and shall be:
(a) delivered personally to the following address:
TCI Satellite Entertainment, Inc.
c/o Corporate Counsel
8085 South Chester Street, Suite 300
Englewood, Colorado 80112
or
(b) sent by first class mail, postage prepaid and addressed as
follows:
TCI Satellite Entertainment, Inc.
c/o Corporate Counsel
8085 South Chester Street, Suite 300
Englewood, Colorado 80112
Any notice or other communication to the Grantee with respect to this Agreement
shall be in writing and shall be delivered personally, or shall be sent by first
class mail, postage prepaid, to
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<PAGE>
Grantee's address as listed in the records of the Company on the Option Date,
unless the Company has received written notification from the Grantee of a
change of address.
11. AMENDMENT. Notwithstanding any other provisions hereof, this
Agreement may be supplemented or amended from time to time as approved by the
Board of Directors, consistent with the provisions of Section 13 of the Plan
regarding amendment of the Plan. Without limiting the generality of the
foregoing, without the consent of the Grantee, this Agreement may be amended or
supplemented (i) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or (ii) to add to the covenants and agreements of the Company for the benefit of
Grantee or surrender any right or power reserved to or conferred upon the
Company in this Agreement, SUBJECT, HOWEVER, to any required approval of the
Company's stockholders and, PROVIDED, in each case, that such changes or
corrections shall not adversely affect the rights of Grantee with respect to the
Option evidenced hereby, or (iii) to make such other changes as the Company,
upon advice of counsel, determines are necessary or advisable because of the
adoption or promulgation of, or change in or of the interpretation of, any law
or governmental rule or regulation, including any applicable federal or state
securities laws.
12. GRANTEE STATUS AS A DIRECTOR. Nothing contained in this Agreement,
and no action of the Company with respect hereto, shall confer or be construed
to confer on the Grantee any right to continue as a member of the Board or
interfere in any way with the right of the Company to terminate the Grantee's
status as a member of the Board at any time, with or without cause; SUBJECT,
HOWEVER, to the provisions of applicable law.
13. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware.
14. CONSTRUCTION. References in this Agreement to "this Agreement" and
the words "herein," "hereof," "hereunder" and similar terms include all Exhibits
and Schedules appended hereto, including the Plan. This Agreement is entered
into, and the Option evidenced hereby is granted, pursuant to the Plan and shall
be governed by and construed in accordance with the Plan. Unless otherwise
expressly stated herein, in the event of any inconsistency between the terms of
the Plan and this Agreement, the terms of the Plan shall control. The headings
of the paragraphs of this Agreement have been included for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
15. DUPLICATE ORIGINALS. The Company and the Grantee may sign any
number of copies of this Agreement. Each signed copy shall be an original, but
all of them together represent the same agreement.
16. ENTIRE AGREEMENT. This Agreement is in satisfaction of and in lieu
of all prior discussions and agreements, oral or written, between the Company
and Grantee. Grantee and the Company hereby declare and represent that no
promise or agreement not herein expressed has been made and that this Agreement
contains the entire agreement between the parties hereto with
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<PAGE>
respect to the Options and replaces and makes null and void any prior agreements
between Grantee and the Company regarding the Options.
17. GRANTEE ACCEPTANCE. Grantee shall signify acceptance of the terms
and conditions of this Agreement by signing in the space provided at the end
hereof and returning a signed copy to the Company.
ATTEST: TCI SATELLITE ENTERTAINMENT, INC.
By:
- -------------------------------- --------------------------------
Name:
Assistant Secretary Title:
ACCEPTED:
-----------------------------------
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<PAGE>
EXHIBIT 5
April 24, 2000
TCI Satellite Entertainment, Inc.
7600 East Orchard Road
Suite 330-South
Englewood, Colorado 80111
Re: TCI Satellite Entertainment, Inc. Registration Statement on Form S-8
Gentlemen:
As counsel for TCI Satellite Entertainment, Inc., a Delaware corporation
(the "Company"), we have examined and are familiar with the Company's
Registration Statement on Form S-8 (the "Registration Statement") with respect
to the registration under the Securities Act of 1933, as amended, of 500,000
shares (the "Shares") of the Company's Series A Common Stock, par value $1.00
per share ("Common Stock"), that are issuable upon the exercise of awards
granted or to be granted under the Company's 1997 Nonemployee Director Stock
Option Plan (the "Plan").
In rendering our opinion, we have examined: the Company's Restated
Certificate of Incorporation and Amended and Restated By-Laws; the Plan;
resolutions of the Company's Board of Directors with respect to the adoption of
the Plan, the reservation of Shares for issuance thereunder and the grant of
awards, the filing of the Registration Statement and related matters; the form
of agreements pertaining to awards granted or to be granted under the Plan; and
certain other documents, records, instruments and certificates of public
officials and of representatives of the Company which were provided to us by the
Company.
Based upon the foregoing and subject to the limitations set forth in the
immediately following paragraph, it is our opinion that the Shares are duly
authorized and, when issued and sold pursuant to the terms of the Plan (and any
applicable agreement pertaining to awards granted or to be granted under the
Plan), will be validly issued, fully paid and non-assessable.
In rendering the foregoing opinion, we have relied on certificates of
officers of the Company as to factual matters. We have assumed the authenticity
of all documents submitted to us as originals and the conformity to authentic
original documents of all documents submitted to us as certified or conformed
copies or photocopies. We have further assumed that there will be no changes in
applicable law between the date of this opinion and the date the Shares are
issued or sold pursuant to the Plan and the Registration Statement.
<PAGE>
Page 2
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Securities Act or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
Baker Botts L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
TCI Satellite Entertainment, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of TCI Satellite Entertainment, Inc. of our report, dated March 29,
2000, relating to the consolidated balance sheets of TCI Satellite
Entertainment, Inc. and subsidiaries as of December 31, 1999 and 1998, and the
related consolidated statements of operations, stockholders' equity (deficit)
and comprehensive income, and cash flows for each of the years in the three-year
period ended December 31, 1999, which report appears in the Annual Report on
Form 10-K of TCI Satellite Entertainment, Inc.
/s/ KPMG LLP
KPMG LLP
Denver, Colorado
April 24, 2000
