As filed with the Securities and Exchange Commission on August 7, 1998.
Registration No. 0-20843
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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CHARTER COMMUNICATIONS INTERNATIONAL, INC.
(Exact name of Registrant as specified in its Charter)
NEVADA 84-1097751
(State or Other Jurisdiction of Incorporation or Organization)
(I.R.S.Employer Identification No.)
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2839 PACES FERRY ROAD
ATLANTA, GEORGIA 30339
(Address of Principal Executive Office)
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NONEMPLOYEE DIRECTOR STOCK OPTION PLAN,
EXECUTIVE LONG-TERM STOCK OPTION PLAN,
INCENTIVE STOCK OPTION PLAN AND TWO NON-PLAN
OPTIONS ATTACHED AS EXHIBITS HERETO
OF CHARTER COMMUNICATIONS INTERNATIONAL, INC.
(Full Title of the Plans)
---------------------
STEPHEN E. RAVILLE with copy to:
CHIEF EXECUTIVE OFFICER DALLAS PARKER, ESQ.
CHARTER COMMUNICATIONS BROWN, PARKER & LEAHY, L.L.P.
INTERNATIONAL, INC. 1200 SMITH STREET
2839 PACES FERRY ROAD SUITE 3600
ATLANTA, GEORGIA 30339 HOUSTON, TEXAS 77002
(Name and address of agent for service)
(770) 432-6800
(Telephone Number, Including Area Code, of Agent for Service)
---------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share (1) Offering Price (1) Registration Fee
- --------------------- ------------ ------------------ ------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, .00001 1,800,000 $ 1.6875 $ 3,037,500 $ 896.06
par value (2) shares
===================== ============ ================== =================== =================
<FN>
(1) Estimated for the purpose of calculating the registration fee pursuant to Rule 457(h)
with respect to the 1,800,000 shares available for award under the Plans and the Options on the
basis of the average of the closing bid and asked prices, as reported by National Quotation
Bureau, Inc., for August 5, 1998
(2) Includes 500,000 shares issuable upon exercise of stock options granted pursuant to the
Directors Plan; 500,000 shares issuable upon exercise of stock options granted pursuant to the
Executive Plan; 500,000 shares issuable upon exercise of stock options granted pursuant to the
Employees Plan and certain non-plan options in the amount of 150,000 and 150,000 issued to
employees, copies of which are attached as exhibits hereto.
</TABLE>
Pursuant to Rule 416, this Registration Statement also covers such number
of additional shares of Common Stock as may become available for issuance
pursuant to the foregoing in the event of certain changes in outstanding shares,
including reorganizations, recapitalizations, stock splits, stock dividends and
reserve stock splits.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information concerning the Charter
Communications International, Inc. Incentive Stock Option Plan, Executive
Long-Term Stock Option Plan and Nonemployee Director Stock Option Plan required
by Item 1 of Part I of Form S-8 and the statement of availability of Registrant
Information, Plan Information and other information required by Item 2 of Part I
of Form S-8 will be sent or given to participants as specified by Rule 428 under
the Securities Act of 1933, as amended (the "Securities Act"). In accordance
with Rule 428 and the requirements of Part I of Form S-8, 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. The Registrant
shall maintain a file of such documents in accordance with the provisions of
Rule 428. Upon request, the registrant shall furnish to the Commission or its
staff a copy or copies of all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The contents of the following documents filed by Charter Communications
International, Inc., a Nevada corporation (the "Company"), with the Securities
and Exchange Commission (the "Commission") are incorporated by reference into
this registration statement on Form S-8 by reference:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1997, filed April 1, 1998 as amended by the Company's Annual Report
on Form 10-KSB/A filed April 30, 1998;
(b) The following reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the Company's fiscal year ended December 31,
1997:
(i) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1998, filed May 15, 1998;
(ii) The Company's Current Report on Form 8-K filed May 13, 1997,
as amended by the Company's Current Report on Form 8-K/A filed March 5, 1998;
(c) The description of the common stock, par value $.00001 per share
(the "Common Stock") of the Company set forth as Item 1 of the Company's
registration statement on Form 8-A filed June 11, 1996, pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended, and declared effective
on August 10, 1996, including any amendment or report filed for the purpose of
updating such information.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 by reference in this
registration statement and to be a part hereof from the date of filing of such
documents. The Company will provide, without charge, to each participant in the
Company's Incentive Stock Option Plan, Executive Long-Term Stock Option Plan and
Nonemployee Director Stock Option Plan, upon written or oral request directed to
the Company's Secretary at the Company's executive offices, a copy (without
exhibits thereto other than exhibits which are specifically incorporated herein
by reference) of any or all documents incorporated by reference to this Item 3.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF COUNSEL.
Certain legal matters with respect to the Common Stock offered hereby will
be passed on for the Company by Brown, Parker & Leahy, L.L.P. ("Brown, Parker").
Brown, Parker owns 100,000 shares of Common Stock of the Company which it
received upon the conversion of an unsecured promissory note in the principal
amount of $100,000, which was issued by the Company with a warrant to purchase
100,000 shares of the Common Stock of the Company at an exercise price per share
escalating from $1.00 to $3.57, depending on the date on which such warrant is
exercised. The note and warrant were issued to Brown, Parker early in 1996 in
lieu of fees for legal services rendered. At the time the warrant was issued
the market price for the Company's Common Stock was below the exercise price.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 78.037 of the Nevada Revised Statutes ("NRS"), the
Company's Articles of Incorporation and Bylaws are intended to take full
advantage of the provisions of the NRS with respect to limiting the personal
liability of its officers, directors, employees and agents. The Articles
provide that a director of the Company shall not, to the fullest extent
permitted by the NRS, as the same exist or may hereafter be amended (but in the
case of any such amendment, only to the extent that such amendment permits
broader limitations than permitted prior to such amendment), be liable to the
Company or its shareholders for monetary damages for an act or omission in the
director's capacity as a director. The Articles and Bylaws provide that the
Company shall indemnify current and former directors, officers, employees and
agents, and persons serving in similar capacities in the Company's subsidiaries
or other entities in which the Company has an interest against expenses,
judgments, fines and amounts paid in settlement incurred if such director,
officer, employee or agent acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
Company and, with respect to a criminal proceeding, had no reasonable cause to
believe such conduct was unlawful. Such determination shall be made (i) if
there is a quorum of disinterested members of the Board of Directors, by a
majority of such disinterested members of the Board of Directors, (ii) if a
majority of the disinterested members of the Board of Directors so determine or
if a quorum of disinterested members of the Board of Directors cannot be
obtained, by independent legal counsel in a written opinion, or (iii) by the
stockholders of the Company. The Company's Articles and Bylaws further provide
that directors, officers, employees and agents shall receive indemnification
payments in advance of the final disposition of an action upon the receipt by
the Company of a written undertaking by or on behalf of such director, officer,
employee or agent to repay the amounts advanced if it is ultimately determined
by a court of competent jurisdiction that such director, officer, employee or
agent was not entitled to indemnification by the Company. Thus, the Company may
be prevented from recovering damages for certain alleged errors or omissions by
directors, officers, employees and agents of the Company.
The Company maintains Directors' and Officers' Liability Insurance which
insures the Company's current and former directors and officers (and their
estates, heirs, legal representatives or assigns) and the Company and its
majority owned subsidiaries from damages, settlements and the cost of defense
associated with any alleged or actual error, misstatement, misleading statement,
act or omission, neglect or breach of duty by the directors and officers of the
Company in the discharge of their duties as directors or officers of the
Company; provided, that certain standard exclusions apply which limit the
liability of the insurer, including the limitation that no payment shall be made
in connection with a claim that is incident to or contributed to by the
fraudulent, dishonest, or criminal acts of the directors or officers of the
Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Articles of Incorporation of the Company (incorporated by reference
to Exhibit 3.01 to the Company's Form 10-QSB for the quarter ended
March 31, 1996).
3.2 Bylaws of the Company (incorporated by reference to Exhibit 3.03 to
the Company's Form 10-QSB for the quarter ended June 30, 1996).
4.1 Incentive Stock Option Plan of the Company.
4.2 Executive Long-term Stock Option Plan of the Company.
4.3 Nonemployee Director Stock Option Plan of the Company.
4.4 Option to Purchase Shares of the Common Stock of Maui Capital
Corporation issued to Jay T. Mueller.
5.1 Legal opinion of Brown, Parker & Leahy, L.L.P.
23.1 Consent of Brown, Parker & Leahy, L.L.P. (included in Exhibit 5.1
Opinion).
23.2 Consent of Arthur Andersen LLP
25.1 Power of Attorney (included on the signature page hereto).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; 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 (a)(1)(i) and (a)(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 with or furnished to the
Commission by the registrant pursuant to Section 13 or 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 will 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of 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 whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of 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 Atlanta, State of Georgia on this 7th day of August,
1998.
CHARTER COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Stephen E. Raville
------------------------
Stephen E. Raville, Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
We, the undersigned directors and officers of Charter Communications
International, Inc., do hereby constitute and appoint Stephen E. Raville or
Patrick E. Delaney, or either of them, our true and lawful attorneys and agents,
to do any and all acts and things in our name and on our behalf in our
capacities as directors and officers, and to execute any and all instruments for
us and in our names in the capacities indicated below, which said attorneys and
agents, or either of them, may deem necessary or advisable to enable said
corporation to comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with the filing of this registration statement, including
specifically without limitation, power and authority to sign for any of us, in
our names in the capacities indicated below, any and all amendments hereto; and
we do each hereby ratify and confirm all that the said attorneys and agents, or
either of them shall do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------- ----------------------- --------------
<S> <C> <C>
/s/ Stephen E. Raville Chief Executive Officer August 7, 1998
- ---------------------------- and Chairman of the
Stephen E. Raville Board of Directors
/s/ Patrick E. Delaney Chief Financial Officer August 7, 1998
- ---------------------------- and Director
Patrick E. Delaney
/s/ Richard P. Halevy Treasurer August 7, 1998
- ----------------------------
Richard P. Halevy
/s/ Robert E. Conn Director August 7, 1998
- ----------------------------
Robert E. Conn
/s/ William P. O'Reilly Director August 7, 1998
- ----------------------------
William P. O'Reilly
/s/ F. Scott Yeager Director August 7, 1998
- ----------------------------
F. Scott Yeager
/s/ James H. Dorsey, III Director August 7, 1998
- ----------------------------
James H. Dorsey, III
/s/ Gerald F. Schmidt Director August 7, 1998
- ----------------------------
Gerald F. Schmidt
</TABLE>
<PAGE>
EXHIBIT 4.1
INCENTIVE STOCK OPTION PLAN
OF
CHARTER COMMUNICATIONS INTERNATIONAL, INC.
(Effective January 1, 1996)
1. PURPOSE OF THE PLAN.
This Incentive Stock Option Plan (the "Plan") is intended as an employment
incentive, to retain in the employ of Charter Communications International, Inc.
(the "Company") and any Parent or Subsidiary of the Company (within the meaning
of Section 424(e) or (f) of the Internal Revenue Code of 1986, as amended (the
"Code"), persons of training, experience and ability, to attract new employees
whose services are considered unusually valuable, 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 options issued pursuant to this Plan shall constitute incentive
stock options within the meaning of Section 422 of the Code.
2. ADMINISTRATION OF THE PLAN.
The Board of Directors shall appoint and maintain as administrator of the
Plan a Stock Option Committee (the "Committee"), which may be the Compensation
Committee of the Board of Directors, which shall consist of at least three
members of the Board of Directors. No member of the Committee shall have been
eligible to participate in the Plan or any other plan of the Company or its
affiliates which entitles participants to acquire stock, stock appreciation
rights or stock options of the Company or its affiliates, other than the
Company's Nonemployee Director Stock Option Plan (the "Director Plan"), at any
time within one year prior to appointment. No member of such Committee shall be
eligible to receive stock options ("Options") under the Plan or any other plan
of the Company or its affiliates which entitles participants to acquire stock,
stock appreciation rights or stock options of the Company or its affiliates,
other than the Director Plan, while serving on the Committee. The Committee
shall serve at the pleasure of the Board of Directors. The Committee shall have
full power and authority to designate participants, to determine the terms and
provisions of respective option agreements (which need not be identical) and to
interpret the provisions and supervise the administration of the Plan. All
decisions and selections made by the Committee pursuant to the provisions of the
Plan shall be made by a majority of its members. Any decision reduced to
writing and signed by all of the members shall be fully effective as if it had
been made by a majority at a meeting duly held. The Committee shall have the
authority to grant in its discretion to the holder of an outstanding Option in
exchange for the surrender and cancellation of such Option, a new Option having
a purchase price per share lower than provided in the Option so surrendered and
cancelled and containing such other terms and conditions as the Committee may
prescribe in accordance with the provisions of the Plan. All Options granted
under this Plan are subject to, and may not be exercised before the approval of
the Plan, or any material amendment to the Plan (as set forth in Paragraph 13 of
the Plan ("Material Amendment"), by the affirmative vote of the holders of a
majority of the outstanding shares of the Company present, or represented, and
entitled to vote thereon at a meeting duly held or by the written consent of the
holders of a majority the outstanding shares of the Company; and further
-------
provided that if such approval is not forthcoming within one year of the date of
- --------
adoption of this Plan, or the adoption of a Material Amendment, all Options
granted pursuant to those provisions of the Plan that have not been properly
approved by the holders of shares of the Company shall be void.
3. DESIGNATION OF PARTICIPANTS.
The persons eligible for participation in the Plan as recipients of Options
shall include only key employees of the Company or of any Parent or Subsidiary
of the Company. The Directors of the Company shall not be eligible to
participate in the Plan as directors, but Directors otherwise qualified shall be
eligible to participate. An employee who has been granted an Option hereunder
("Optionee") may be granted an additional Option or Options, if the Committee
shall so determine. The aggregate fair market value (determined in accordance
with Paragraph 5 of the Plan as of the time the Option is granted) of the stock
(within the meaning of Section 422(d)(3) of the Code) with respect to which
incentive stock options are exercisable for the first time by any Optionee
during any calendar year (under all such plans of the Company and any Parent and
Subsidiary of the Company) shall not exceed $100,000.
4. STOCK RESERVED FOR THE PLAN.
Subject to adjustment as provided in Paragraph 9 hereof, a total of 500,000
shares of Common Stock, par value $.00001 per share ("Stock"), of the Company
shall be subject to the Plan. The Shares subject to the Plan shall consist of
unissued shares or previously issued shares reacquired and held by the Company,
or any Parent or Subsidiary of the Company, and such amount of shares shall be
and is hereby reserved for sale for such purpose. Any of such shares which may
remain unsold and which are not subject to outstanding Options at the
termination of the Plan shall cease to be reserved for the purpose of the Plan,
but until termination of the Plan the Company shall at all times reserve a
sufficient number of shares to meet the requirements of the Plan. Should any
Option expire or be cancelled prior to its exercise in full, the shares
theretofore subject to such Option, to the extent it had not been exercised, may
again be subjected to an Option under the Plan.
5. OPTION PRICE.
(a) The purchase price of each share subject to an option
under this Plan shall be not less than 100% of the fair market value of such
share on the date the Option is granted, but may be at such higher price as the
Committee in its sole discretion shall determine.
(b) The fair market value of a share on a particular date
shall be deemed to be (a) in the event the Stock is not listed on a national
securities exchange or traded in the over-the-counter market, the value
determined in good faith by the Board of Directors of the Company, which
determination shall be conclusive, (b) in the event the Stock is listed on a
national securities exchange, the mean between the highest and lowest sales
prices per share of the Stock on such exchange on the date, or, if there shall
have been no sale on that date, on the last preceding date on which such a sale
or sales were so reported (the "Sale Date"), or (c) if the Stock is traded in
the over-the-counter market, the closing sales price for a share of such stock
if such price is regularly quoted, or, if not so quoted, then the mean between
the highest closing bid and lowest closing asked price for the Stock as reported
by the National Association of Securities Dealers NASDAQ System on the Sale
Date, or if not reported by such system the mean between the closing bid and
asked price on the Sale Date as quoted by such quotation source as shall be
designated by the Committee.
6. OPTION PERIOD.
Options granted under this plan shall terminate and be of no force and
Effect with respect to any shares not previously taken up by the Optionee
upon the earliest to occur of the following: (a) the expiration of seven (7)
years from the date of grant of each Option; (b) one year after termination of
Optionee's employment by reason of death or disability of the Optionee; or (c)
three months after termination of Optionee's employment for any reason other
than death or disability. The Committee, in its sole discretion, may prescribe
a longer or shorter option period, but in no event shall the period be extended
beyond that prescribed in section 6.(a).
7. EXERCISE OF OPTIONS.
(a) The Committee, in granting Options hereunder, shall have
discretion to determine the terms upon which such Options shall be exercisable,
subject to the applicable provisions of the Plan. The Committee may determine
to permit any Option granted hereunder to be exercisable immediately upon the
date of grant or at any time thereafter.
(b) Options 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 or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act, or the rules thereunder.
(c) In the event of termination of employment for any reason
other than death, disability or retirement, Options may be exercised only with
respect to the number of shares purchasable at the time of such termination.
(d) In the event of the death or disability of the Optionee
following the date of grant and while in the employment with the Company or any
Parent or Subsidiary of the Company, and while Options granted hereunder are
still in force and unexpired under the terms of Paragraph 6 hereof, any
unmatured installments of the Options shall be accelerated. Such acceleration
shall be effective as of the date of death. The Options outstanding in the name
of a deceased Optionee shall thereupon be exercisable in full without regard to
any installment exercise provisions.
(e) In the event the Optionee terminates his employment
because of retirement under any retirement plan of the Company or of any Parent
or Subsidiary of the Company while Options granted hereunder are still in force
and unexpired under the terms of Paragraph 6 hereof, the Committee shall have
discretion to permit any unmatured installments of the Options to be accelerated
as of the date of retirement and the Options shall thereupon be exercisable in
full without regard to any installment exercise provisions.
(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. Such purchase
price shall be payable in cash, or at the option of the holder of such Option,
in Stock theretofore owned by such holder (or any combination of cash and such
Stock). For purposes of determining the amount, if any, of the purchase price
satisfied by payment in Stock, such Stock shall be valued at its fair market
value on the date of exercise in accordance with subparagraph (b) of Paragraph
5. Any Stock delivered in satisfaction of all or a portion of the purchase
price shall be appropriately endorsed for transfer and assignment to the
Company. 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 purchasable
upon the exercise of any part of an Option unless and until certificates
representing such shares shall have been issued by the Company to such holders.
(g) The option agreement evidencing any Options granted under
this Plan shall provide that if the Optionee makes a disposition, within the
meaning of Section 424(c) of the Code and regulations promulgated thereunder, of
any share or shares of Stock issued to him pursuant to his exercise of an Option
granted under the Plan within the two-year period commencing on the day after
the date of the grant of such Option or within a one-year period commencing on
the day after the date of transfer of the share or shares to him pursuant to the
exercise of such Option, he shall, within ten (10) days of such disposition,
notify the Company thereof and immediately deliver to the Company any amount of
federal income tax withholding required by law.
8. RELINQUISHMENT OF OPTIONS; ASSIGNABILITY.
(a) The Committee, in granting Options hereunder, shall have
discretion to determine whether or not Options shall include a right of
relinquishment as hereinafter provided by this Paragraph 8. The Committee shall
also have discretion to determine whether an option agreement evidencing an
Option granted by the Committee shall be amended or supplemented to include such
a right of relinquishment. Neither the Committee nor the Company shall be under
any obligation or incur any liability to any person by reason of the Committee's
refusing to grant or include a right of relinquishment in any Option granted
hereunder or in any option agreement evidencing the same. Subject to the
Committee's determining in any case that the grant by it of a right of
relinquishment is consistent with Paragraph 1 hereof, any Option granted under
the Plan, and the option agreement evidencing such Option, may provide:
(i) That the Optionee, or his heirs or other legal
representatives to the extent entitled to exercise the Option under the terms
thereof, in lieu of purchasing the entire number of shares subject to purchase
thereunder, shall have the right to relinquish all or any part of the then
unexercised portion of the Option (to the extent exercisable as provided in (iv)
hereinbelow) for a number of shares of Stock, for an amount of cash or for a
combination of Stock and cash, to be determined as follows:
(A) The written notice of exercise of such right of
relinquishment, provided for in clause (ii) of this subparagraph (a), shall
state the percentage, if any, of the Appreciated Value, hereinafter defined,
which such Optionee elects to receive in cash (which percentage is called the
"Cash Percentage"), such Cash Percentage to be in increments of 10% of such
Appreciated Value to 100% thereof;
(B) The number of shares of Stock of the Company, if
any, issuable pursuant to such relinquishment shall be the number of such
shares, rounded to the next greater number of full shares, as shall be equal to:
100% less the Cash Percentage, times the excess of (1) the aggregate current
market value of the shares of Stock covered by the Option or the portion thereof
so relinquished over (2) the aggregate purchase price for such shares specified
in such Option (which excess is called the "Appreciated Value"), divided by the
then-current market value per share of such Stock; and
(C) The amount of cash payable pursuant to such
relinquishment shall be an amount equal to the Appreciated Value less the
aggregate current market value of the Stock issued pursuant to such
relinquishment, if any, which cash shall be paid by the Company subject to such
conditions as are deemed advisable by the Committee to permit compliance by the
Company with the withholding provisions applicable to employers under the Code
(and under any applicable State income tax law);
(ii) That such right of relinquishment may be exercised only
upon receipt by the Company of a written notice of such relinquishment which
shall be dated the date of election to make such relinquishment; and that, for
the purposes of the Plan, such date of election shall be deemed to be the date
when such notice is sent by registered or certified mail, or when receipt is
acknowledged by the Company, if mailed by other than registered or certified
mail or if delivered by hand or by any telegraphic communications equipment of
the sender or otherwise delivered, which date must be no earlier than the third
business day following the date of public release of the Company's annual and
quarterly financial statements in accordance with the requirements of Rule
16b-3(c)(1)(ii) of the Securities Exchange Act of 1934, as amended ("Exchange
Act") and no later than the twelfth business day after such release; provided
that, in the event the method just described for determining such date of
election shall not be or remain consistent with provisions of Section 16(b) of
the Securities Exchange Act of 1934 or the rules and regulations adopted by the
Securities and Exchange Commission thereunder, as presently existing or as may
be hereafter amended, which exempt from the operation of said Section 16(b) in
whole or in part any such relinquishment transaction, then such date of election
shall be determined by such other method consistent with said Section 16(b) or
rules or regulations as the Committee shall in its discretion select and apply;
(iii) That the "current market value" of a share on a
particular date shall be deemed to be its fair market value on that date as
determined in accordance with subparagraph (b) of Paragraph 5; and
(iv) That the Option, or any portion thereof, may be
relinquished only to the extent that (A) it is exercisable on the date written
notice of relinquishment is received by the Company and (B) the Committee,
subject to the provisions of subparagraph (b) of this Paragraph 8, shall consent
to the election of the holder of such Option to relinquish such Option as set
forth in such written notice of relinquishment, and (C) the holder of such
Option pays, or makes provision satisfactory to the Company for the payment of,
any taxes which the Company is obligated to collect with respect to such
relinquishment.
(b) The Committee shall have sole discretion to consent to or
disapprove any election of a holder of an Option to relinquish such Option for
Stock and cash as provided in subparagraph (a) of this Paragraph 8. Neither the
Committee nor the Company shall be under any liability to any person by reason
of the Committee's disapproval of any election pursuant to this subparagraph
(b).
(c) The Committee, in granting Options hereunder, shall have
discretion to determine the terms upon which such Options shall be
relinquishable, subject to the applicable provisions of the Plan, and including
such provisions as are deemed advisable to permit the exemption from the
operation from Section 16(b) of the Securities Exchange Act of 1934 in whole or
in part of any such transaction involving such relinquishment, and Options
outstanding, and option agreements evidencing such Options, may be amended, if
necessary, to permit such exemption. If an Option is relinquished, such Option
shall be deemed to have been exercised to the extent of the number of shares of
Stock covered by the Option or part thereof which is relinquished, and no
further Options may be granted covering such shares of Stock.
(d) Neither any Option nor any right to relinquish the same
to the Company as contemplated by this Paragraph 8 shall be assignable or
otherwise transferable except by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code or Title
I of the Employee Retirement Income Security Act, or the rules thereunder.
(e) No right of relinquishment may be exercised within the
first six months of the date of grant of such right; provided, however, that
this limitation shall not apply in the event of death or disability.
9. CAPITAL CHANGE OF THE COMPANY; CERTAIN CORPORATE TRANSACTIONS
(a) The existence of this Plan and Options granted hereunder
shall not affect in any way 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 Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stocks ahead of or affecting the
Company's Common Stock or the rights thereof, 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, whether of a similar
character or otherwise.
(b) The shares with respect to which Options may be granted
hereunder are shares of the Stock of the Company as presently constituted. If,
and whenever, prior to the delivery by the Company of all of the shares of the
Stock which are subject to Options granted hereunder, the Company shall effect a
subdivision or consolidation of shares or other capital readjustment, the
payment of a stock dividend, a stock split, combination of shares or
recapitalization or other increase or reduction of the number of shares of the
Stock outstanding without receiving compensation therefor in money, services or
property, the number of shares of Stock available under the Plan and the number
of shares of Stock with respect to which Options granted hereunder may
thereafter be exercised shall (i) in the event of an increase in the number of
outstanding shares, be proportionately increased, and the cash consideration
payable per share shall be proportionately reduced; and (ii) in the event of a
reduction in the number of outstanding shares, be proportionately reduced, and
the cash consideration payable per share shall be proportionately increased.
(c) If the Company is reorganized, or merged or consolidated
or party to a plan of exchange with another corporation or other entity pursuant
to which reorganization, merger, consolidation or plan of exchange stockholders
of the Company receive any shares of Stock or other securities or if the Company
shall distribute ("Spin Off") securities of another corporation or other entity
to its stockholders, there shall be substituted for the shares subject to the
unexercised portion of outstanding Options an appropriate number of shares of
(i) each class of stock or other securities which were distributed to the
stockholders of the Company in respect of such shares in the case of a
reorganization, merger, consolidation or plan of exchange, or (ii) in the case
of a Spin Off, the securities distributed to stockholders of the Company
together with shares of Stock, in the case of each of (i) and (ii) above in
accordance with the provisions of Section 424 of the Code (or other applicable
provisions of the Code or regulations issued thereunder which may from time to
time govern the treatment of incentive stock options in such a transaction);
provided, however, that all such Options may be cancelled by the Company as of
the effective date of (x) a reorganization, merger, consolidation, plan of
exchange or Spin Off or (y) any dissolution or liquidation of the Company, by
giving notice to each holder thereof or his personal representative of its
intention to do so and by permitting the purchase for a period of approximately
thirty days during the sixty days next preceding such effective date of all of
the shares subject to such outstanding Options, without regard to the
installment provisions set forth in the option agreement.
(d) Except as hereinbefore expressly provided, the issue by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, for cash or property, or for labor or services,
either upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number of shares of Stock
subject to Options granted hereunder.
10. PURCHASE FOR INVESTMENT.
Unless the Options and shares covered by the Plan have been registered
under the Securities Act of 1933, as amended, or the Company has determined that
such registration is unnecessary, each person exercising an Option under the
Plan may be required by the Company to give a representation in writing 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 any part thereof.
11. TAXES.
The Company may make such provisions as it may deem appropriate for the
withholding of any taxes which it determines is required in connection with any
Options granted under the Plan.
12. EFFECTIVE DATE OF PLAN.
The Plan shall be effective as of January 1, 1996. This Plan and any
options granted pursuant hereto shall be subject to the approval of the
stockholders of the Company in accordance with the provisions of Rule 16b-3 and
the applicable rules and regulations of the National Securities Dealers
Association, Inc., or any national exchange which are applicable to the Stock of
the Company.
13. AMENDMENTS OR TERMINATION.
The Board of Directors may amend, alter or discontinue the Plan, except
that no amendment or alteration shall be made which would impair the rights of
any Optionee under any Option theretofore granted, without his consent, and
except that no amendment or alteration shall be made which, without the approval
of the stockholders, would:
(a) Increase the total number of shares reserved for the
purposes of the Plan, except as is provided in Paragraph 9 of the Plan, or
decrease the option price provided for in Paragraph 5, or change the class of
employees eligible to participate in the Plan as provided in Paragraph 3; or
(b) Extend the option period provided for in Paragraph 6; or
(c) Materially increase the benefits accruing to Optionees
under the Plan; or
(d) Materially modify the requirements as to eligibility for
participation in the Plan.
14. HOLDING PERIOD.
The Options and all underlying shares granted pursuant to the terms of the
Plan may not be transferred, assigned or otherwise disposed of for six months
and one day following the respective date of grant for each such Option. The
exercise of such Options shall not be deemed a disposition for the purpose of
this paragraph.
15. GOVERNMENT REGULATIONS.
The Plan, and the granting and exercising of Options thereunder, and the
obligation of the Company to sell and deliver shares under such Options, shall
be subject to all applicable laws, rules and regulations, and to such approvals
by any governmental agencies or national securities exchanges as may be
required.
CHARTER COMMUNICATIONS INTERNATIONAL, INC.
/s/ STEPHEN E. RAVILLE
-------------------------
STEPHEN E. RAVILLE, CHIEF EXECUTIVE OFFICER
<PAGE>
EXHIBIT 4.2
EXECUTIVE LONG-TERM STOCK OPTION PLAN
OF
CHARTER COMMUNICATIONS INTERNATIONAL, INC.
(Effective January 1, 1996)
1. PURPOSE OF THE PLAN.
This Executive Long-Term Stock Option Plan (this "Plan") is intended as an
employment incentive, to retain in the employ of Charter Communications
International, Inc. (the "Company") and any Parent or Subsidiary of the Company
(within the meaning of Section 424(e) or (f) of the Internal Revenue Code of
1986, as amended (the "Code")), those executive officers and other key employees
of the Company who are persons of significant training, experience and ability,
to attract new executive-level employees whose services are considered unusually
valuable, 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. Options granted under this Plan are not intended to
---
qualify as incentive stock options within the meaning of Section 422 of the
Code.
2. ADMINISTRATION OF THE PLAN.
The Board of Directors shall appoint and maintain as administrator of this
Plan a Stock Option Committee (the "Committee"), which may be the Compensation
Committee of the Board of Directors, which shall consist of at least three
members of the Board of Directors. No member of the Committee shall have been
eligible to participate in this Plan or any other plan of the Company or its
affiliates which entitles participants to acquire stock, stock appreciation
rights or stock options of the Company or its affiliates, other than the
Company's Nonemployee Director Stock Option Plan (the "Director Plan"), at any
time within one year prior to appointment. No member of such Committee shall be
eligible to receive stock options under this Plan ("Options") or any other plan
of the Company or its affiliates which entitles participants to acquire stock,
stock appreciation rights or stock options of the Company or its affiliates,
other than the Director Plan, while serving on the Committee. The Committee
shall serve at the pleasure of the Board of Directors. The Committee shall have
full power and authority to designate participants, to determine the terms and
provisions of respective option agreements (which need not be identical) and to
interpret the provisions and supervise the administration of this Plan. All
decisions and selections made by the Committee pursuant to the provisions of
this Plan shall be made by a majority of its members. Any decision reduced to
writing and signed by all of the members shall be fully effective as if it had
been made by a majority at a meeting duly held. The Committee shall have the
authority to grant in its discretion to the holder of an outstanding Option in
exchange for the surrender and cancellation of such Option, a new Option having
a purchase price per share lower than provided in the Option so surrendered and
cancelled and containing such other terms and conditions as the Committee may
prescribe in accordance with the provisions of this Plan. All Options granted
under this Plan are subject to, and may not be exercised before the approval of
this Plan, or any material amendment to this Plan, as set forth in Paragraph 14
of this Plan, ("Material Amendment"), by the affirmative vote of the holders of
a majority of the outstanding shares of the Company present, or represented, and
entitled to vote thereon at a meeting duly held or by the written consent of the
holders of at least a majority of the outstanding shares of the Company; and
further provided that if such approval is not forthcoming within one year of the
- ----------------
date of adoption of this Plan, or the adoption of a Material Amendment, all
Options granted pursuant to those provisions of this Plan that have not been
properly approved by the holders of shares of the Company shall be void.
3. DESIGNATION OF PARTICIPANTS.
The persons eligible for participation in this Plan as recipients of
Options shall include only executive level employees and other key employees
of the Company or of any Parent or Subsidiary of the Company. The Directors of
the Company shall not be eligible to participate in this Plan as directors,
but Directors otherwise qualified shall be eligible to participate. An employee
who has been granted an Option hereunder ("Optionee") may be granted an
additional Option or Options, if the Committee shall so determine.
4. STOCK RESERVED FOR THE PLAN.
Subject to adjustment as provided in Paragraph 10 hereof, a total of
500,000 shares of Common Stock, par value $.00001 per share ("Stock"), of the
Company shall be subject to this Plan. The Shares subject to this Plan shall
consist of unissued shares or previously issued shares reacquired and held by
the Company, or any Parent or Subsidiary of the Company, and such number of
shares shall be and is hereby reserved for sale for such purpose. Any of such
shares which may remain unsold and which are not subject to outstanding Options
at the termination of this Plan shall cease to be reserved for the purpose of
this Plan, but until termination of this Plan the Company shall at all times
reserve a sufficient number of shares to meet the requirements of this Plan.
Should any Option expire or be cancelled prior to its exercise in full, the
shares theretofore subject to such Option, to the extent it had not been
exercised, may again be subjected to an Option under this Plan.
5. OPTION PRICE.
(a) The purchase price of each share subject to a stock
option under this Plan shall be determined by the Committee prior to granting
the Option. The Committee shall set the purchase price for each share subject
to a stock option at either the fair market value of each share on the date the
Option is granted, or at such other price as the Committee in its sole
discretion shall determine; provided, however, that the Option price shall not
be less than the fair market value of such share on the date the Option is
granted.
(b) The fair market value of a share on a particular date
shall be deemed to be (a) in the event the Stock is not listed on a national
securities exchange or traded in the over-the-counter market, the value
determined in good faith by the Board of Directors of the Company, which
determination shall be conclusive, (b) in the event the Stock is listed on a
national securities exchange, the mean between the highest and lowest sales
prices per share of the Stock on such exchange on the date, or, if there shall
have been no sale on that date, on the last preceding date on which such a sale
or sales were so reported (the "Sale Date"), or (c) if the Stock is traded in
the over-the-counter market, the closing sales price for a share of such stock
if such price is regularly quoted, or, if not so quoted, then the mean between
the highest closing bid and lowest closing asked price for the Stock as reported
by the National Association of Securities Dealers NASDAQ System on the Sale
Date, or if not reported by such system the mean between the closing bid and
asked price on the Sale Date as quoted by such quotation source as shall be
designated by the Committee.
6. OPTION PERIOD.
Options granted under this plan shall terminate and be of no force and
Effect with respect to any shares not previously taken up by the Optionee
upon the earliest to occur of the following: (a) the expiration of seven (7)
years from the date of grant of each Option; (b) one year after termination of
Optionee's employment by reason of death or disability of the Optionee; or (c)
three months after termination of Optionee's employment for any reason other
than death or disability. The Committee, in its sole discretion, may prescribe
a longer or shorter option period, but in no event shall the period be extended
beyond that prescribed in section 6.(a).
7. EXERCISE OF OPTIONS.
(a) The Committee, in granting Options hereunder, shall have
sole discretion to determine the terms upon which such Options shall be
exercisable; provided, however, that, except as set forth in the following
sentence, no Option granted pursuant hereto shall become exercisable until at
least one (1) year has elapsed since the date of grant of such Option.
Notwithstanding any provision herein to the contrary, the Committee shall have
the discretion to grant Options for up to 100,000 shares (of the shares
available pursuant to this Plan) without any restriction as to the period which
is required to elapse prior to exercise.
(b) Options may be exercised only 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 or pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee Retirement
Income Security Act, or the rules thereunder.
(c) In the event of the termination of the employment of any
Optionee for any reason other than death, disability or retirement, Options
granted to such Optionee may be exercised only with respect to the number of
shares purchasable at the time of such termination.
(d) In the event of the death or disability of any Optionee
following the date of grant of an Option hereunder and while such Optionee is in
the employment of the Company or any Parent or Subsidiary of the Company, and
while Options granted hereunder are still in force and unexpired under the terms
of Paragraph 6 hereof, any unmatured installments of any such Option shall be
accelerated. Such acceleration shall be effective as of the date of death. Any
such Option outstanding in the name of a deceased Optionee shall thereupon be
exercisable in full without regard to any installment exercise provisions.
(e) In the event the Optionee terminates his employment
because of retirement under any retirement plan of the Company or of any Parent
or Subsidiary of the Company while Options granted hereunder are still in force
and unexpired under the terms of Paragraph 6 hereof, the Committee shall have
discretion to permit any unmatured installments of the Options to be accelerated
as of the date of retirement and the Options shall thereupon be exercisable in
full without regard to any installment exercise provisions.
(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. Such purchase
price shall be payable in cash, or at the option of the holder of such Option,
in Stock theretofore owned by such holder (or any combination of cash and such
Stock). For purposes of determining the amount, if any, of the purchase price
satisfied by payment in Stock, such Stock shall be valued at its fair market
value on the date of exercise in accordance with subparagraph (b) of Paragraph
5. Any Stock delivered in satisfaction of all or a portion of the purchase
price shall be appropriately endorsed for transfer and assignment to the
Company. 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 purchasable
upon the exercise of any part of an Option unless and until certificates
representing such shares shall have been issued by the Company to such holders.
(g) In accordance with applicable law and other restrictions to
which the Company is subject, the Company may, from time to time, but shall have
no obligation to, provide financing to an Optionee for the payment of all or a
portion of the exercise of any Option granted pursuant to this Plan.
8. RELINQUISHMENT OF OPTIONS; ASSIGNABILITY.
(g) The Committee, in granting Options hereunder, shall have
discretion to determine whether or not Options shall include a right of
relinquishment as hereinafter provided by this Paragraph 8. The Committee shall
also have discretion to determine whether an option agreement evidencing an
Option granted by the Committee shall be amended or supplemented to include such
a right of relinquishment. Neither the Committee nor the Company shall be under
any obligation or incur any liability to any person by reason of the Committee's
refusing to grant or include a right of relinquishment in any Option granted
hereunder or in any option agreement evidencing the same. Subject to the
Committee's determining in any case that the grant by it of a right of
relinquishment is consistent with Paragraph 1 hereof, any Option granted under
this Plan, and the option agreement evidencing such Option, may provide:
(i) That the Optionee, or his heirs or other legal
representatives to the extent entitled to exercise the Option under the terms
thereof, in lieu of purchasing the entire number of shares subject to purchase
thereunder, shall have the right to relinquish all or any part of the then
unexercised portion of the Option (to the extent exercisable as provided in (iv)
hereinbelow) for a number of shares of Stock, for an amount of cash or for a
combination of Stock and cash, to be determined as follows:
(A) The written notice of exercise of such right of
relinquishment, provided for in clause (ii) of this subparagraph (a), shall
state the percentage, if any, of the Appreciated Value, hereinafter defined,
which such Optionee elects to receive in cash (which percentage is called the
"Cash Percentage"), such Cash Percentage to be in increments of 10% of such
Appreciated Value to 100% thereof;
(B) The number of shares of Stock of the Company, if
any, issuable pursuant to such relinquishment shall be the number of such
shares, rounded to the next greater number of full shares, as shall be equal to:
100% less the Cash Percentage, times the excess of (1) the aggregate current
market value of the shares of Stock covered by the Option or the portion thereof
so relinquished over (2) the aggregate purchase price for such shares specified
in such Option (which excess is called the "Appreciated Value"), divided by the
then-current market value per share of such Stock; and
(C) The amount of cash payable pursuant to such
relinquishment shall be an amount equal to the Appreciated Value less the
aggregate current market value of the Stock issued pursuant to such
relinquishment, if any, which cash shall be paid by the Company subject to such
conditions as are deemed advisable by the Committee to permit compliance by the
Company with the withholding provisions applicable to employers under the Code
(and under any applicable State income tax law);
(ii) That such right of relinquishment may be exercised only
upon receipt by the Company of a written notice of such relinquishment which
shall be dated the date of election to make such relinquishment; and that, for
the purposes of this Plan, such date of election shall be deemed to be the date
when such notice is sent by registered or certified mail, or when receipt is
acknowledged by the Company, if mailed by other than registered or certified
mail or if delivered by hand or by any telegraphic communications equipment of
the sender or otherwise delivered, which date must be no earlier than the third
business day following the date of public release of the Company's annual and
quarterly financial statements in accordance with the requirements of Rule
16b-3(c)(1)(ii) of the Securities Exchange Act of 1934, as amended ("Exchange
Act") and no later than the twelfth business day after such release; provided
that, in the event the method just described for determining such date of
election shall not be or remain consistent with provisions of Section 16(b) of
the Exchange Act or the rules and regulations adopted by the Securities and
Exchange Commission thereunder, as presently existing or as may be hereafter
amended, which exempt from the operation of said Section 16(b) in whole or in
part any such relinquishment transaction, then such date of election shall be
determined by such other method consistent with said Section 16(b) or rules or
regulations as the Committee shall in its discretion select and apply;
(iii) That the "current market value" of a share on a
particular date shall be deemed to be its fair market value on that date as
determined in accordance with subparagraph (b) of Paragraph 5; and
(iv) That the Option, or any portion thereof, may be
relinquished only to the extent that (A) it is exercisable on the date written
notice of relinquishment is received by the Company and (B) the Committee,
subject to the provisions of subparagraph (b) of this Paragraph 8, shall consent
to the election of the holder of such Option to relinquish such Option as set
forth in such written notice of relinquishment, and (C) the holder of such
Option pays, or makes provision satisfactory to the Company for the payment of,
any taxes which the Company is obligated to collect with respect to such
relinquishment.
(h) The Committee shall have sole discretion to consent to or
disapprove any election of a holder of an Option to relinquish such Option for
Stock and cash as provided in subparagraph (a) of this Paragraph 8. Neither the
Committee nor the Company shall be under any liability to any person by reason
of the Committee's disapproval of any election pursuant to this subparagraph
(b).
(i) The Committee, in granting Options hereunder, shall have
discretion to determine the terms upon which such Options shall be
relinquishable, subject to the applicable provisions of this Plan, and including
such provisions as are deemed advisable to permit the exemption from the
operation from Section 16(b) of the Exchange Act in whole or in part of any such
transaction involving such relinquishment, and Options outstanding, and option
agreements evidencing such Options, may be amended, if necessary, to permit such
exemption. If an Option is relinquished, such Option shall be deemed to have
been exercised to the extent of the number of shares of Stock covered by the
Option or part thereof which is relinquished, and no further Options may be
granted covering such shares of Stock.
(j) Neither any Option nor any right to relinquish the same
to the Company as contemplated by this Paragraph 8 shall be assignable or
otherwise transferable except by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code or Title
I of the Employee Retirement Income Security Act, or the rules thereunder.
(k) No right of relinquishment may be exercised within the
first six months of the date of grant of such right; provided, however, that
this limitation shall not apply in the event of death or disability.
9. CAPITAL CHANGE OF THE COMPANY; CERTAIN CORPORATE TRANSACTIONS.
(a) The existence of this Plan and Options granted hereunder
shall not affect in any way 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 Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stocks ahead of or affecting the
Company's Common Stock or the rights thereof, 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, whether of a similar
character or otherwise.
(b) The shares with respect to which Options may be granted
hereunder are shares of the Stock of the Company as presently constituted. If,
and whenever, prior to the delivery by the Company of all of the shares of the
Stock which are subject to Options granted hereunder, the Company shall effect a
subdivision or consolidation of shares or other capital readjustment, the
payment of a stock dividend, a stock split, combination of shares or
recapitalization or other increase or reduction of the number of shares of the
Stock outstanding without receiving compensation therefor in money, services or
property, the number of shares of Stock available under this Plan and the number
of shares of Stock with respect to which Options granted hereunder may
thereafter be exercised shall (i) in the event of an increase in the number of
outstanding shares, be proportionately increased, and the cash consideration
payable per share shall be proportionately reduced; and (ii) in the event of a
reduction in the number of outstanding shares, be proportionately reduced, and
the cash consideration payable per share shall be proportionately increased.
(c) If the Company is reorganized, or merged or consolidated
or party to a plan of exchange with another corporation or other entity pursuant
to which reorganization, merger, consolidation or plan of exchange stockholders
of the Company receive any shares of Stock or other securities or if the Company
shall distribute ("Spin Off") securities of another corporation or other entity
to its stockholders, there shall be substituted for the shares subject to the
unexercised portion of outstanding Options an appropriate number of shares of
(i) each class of stock or other securities which were distributed to the
stockholders of the Company in respect of such shares in the case of a
reorganization, merger, consolidation or plan of exchange, or (ii) in the case
of a Spin Off, the securities distributed to stockholders of the Company
together with shares of Stock; provided, however, that all such Options may be
cancelled by the Company as of the effective date of (x) a reorganization,
merger, consolidation, plan of exchange or Spin Off or (y) any dissolution or
liquidation of the Company, by giving notice to each holder thereof or his
personal representative of its intention to do so and by permitting the purchase
for a period of approximately thirty days during the sixty days next preceding
such effective date of all of the shares subject to such outstanding Options,
without regard to the installment provisions set forth in the option agreement.
(d) Except as hereinbefore expressly provided, the issuance
by the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, for cash or property, or for labor or services,
either upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number of shares of Stock
subject to Options granted hereunder.
10. PURCHASE FOR INVESTMENT.
Unless the Options and shares covered by this Plan have been registered
under the Securities Act of 1933, as amended, or the Company has determined that
such registration is unnecessary, each person exercising an Option under this
Plan may be required by the Company to give a representation in writing 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 any part thereof.
11. TAXES.
The Company may make such provisions as it may deem appropriate for the
withholding of any taxes which it determines is required in connection with any
Options granted under this Plan.
12. EFFECTIVE DATE OF PLAN.
This Plan shall be effective as of January 1, 1996. This Plan and any
options granted pursuant hereto shall be subject to the approval of the
stockholders of the Company in accordance with the provisions of Rule 16b-3 and
the applicable rules and regulations of the National Securities Dealers
Association, Inc., or any national exchange which are applicable to the Stock of
the Company.
13. AMENDMENTS OR TERMINATION.
The Board of Directors may amend, alter or discontinue this Plan, except
that no amendment or alteration shall be made which would impair the rights of
any Optionee under any Option theretofore granted, without his consent, and
except that no amendment or alteration shall be made which, without the approval
of the stockholders, would:
(a) Increase the total number of shares reserved for the
purposes of this Plan, except as is provided in Paragraph 9 of this Plan, or
decrease the option price provided for in Paragraph 5, or change the class of
employees eligible to participate in this Plan as provided in Paragraph 3; or
(b) Extend the option period provided for in Paragraph 6; or
(c) Materially increase the benefits accruing to Optionees
under this Plan; or
(d) Materially modify the requirements as to eligibility for
participation in this Plan.
14. HOLDING PERIOD.
The Options and all underlying shares granted pursuant to the terms of this
Plan may not be transferred, assigned or otherwise disposed of for six months
and one day following the respective date of grant for each such Option. The
exercise of such Options shall not be deemed a disposition for the purpose of
this paragraph.
15. GOVERNMENT REGULATIONS.
This Plan, and the granting and exercising of Options thereunder, and the
obligation of the Company to sell and deliver shares under such Options, shall
be subject to all applicable laws, rules and regulations, and to such approvals
by any governmental agencies or national securities exchanges as may be
required.
CHARTER COMMUNICATIONS INTERNATIONAL, INC.
/s/ STEPHEN E. RAVILLE
-------------------------
STEPHEN E. RAVILLE, CHIEF EXECUTIVE OFFICER
EXHIBIT 4.3
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
OF
CHARTER COMMUNICATIONS INTERATIONAL, INC.
(Effective January 1, 1996)
1. PURPOSE OF THE PLAN.
This Nonemployee Director Stock Option Plan (the "Plan") is intended as an
incentive to retain as independent directors on the Board of Directors of
Charter Communications International, Inc. (the "Company"), persons of training,
experience and ability, to attract new directors whose services are considered
unusually valuable, 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
issued pursuant to this Plan not qualify as incentive stock options within the
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meaning of Section 422 of the Internal Revenue Code of 1986 (the "Code").
2. SHAREHOLDER APPROVAL.
All Options granted under this Plan are subject to, and may not be
exercised before, the approval of the Plan by the affirmative votes of the
holders of a majority of the outstanding shares of the Company entitled to vote
thereon; and, further provided, that if such shareholder approval is not
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forthcoming within one year of the date of adoption of this Plan, all Options
previously granted shall be void.
3. DESIGNATION OF PARTICIPANTS; GRANT OF OPTIONS.
Each Director of the Company ("Director") who is not otherwise an employee
of the Company or of any Parent or Subsidiary ("Optionees") shall be granted
Options as described hereunder. Provided there are then sufficient shares of
Stock available for grant hereunder, each Optionee shall automatically be
granted Options to purchase 100,000 shares (subject to adjustment as provided in
Paragraph 9) of the Company's common stock, $.00001 par value per share
("Stock") on the date the Director becomes a Director of the Company. Such
grants shall vest in equal installments on each of four anniversaries of the
grant date thereof if the Optionee has served as director of the Company for the
entire preceding fiscal year.
4. STOCK RESERVED FOR THE PLAN.
Subject to adjustment as provided in Paragraph 9 hereof, a total of 500,000
shares of Common Stock, par value $.00001 per share ("Stock"), of the Company
shall be subject to the Plan. The shares of Stock subject to the Plan shall
consist of unissued shares or previously issued shares reacquired and held by
the Company, or any Parent or Subsidiary of the Company, and such amount of
shares shall be and is hereby reserved for sale for such purpose. Any of such
shares which may remain unsold and which are not subject to outstanding Options
at the termination of the Plan shall cease to be reserved for the purpose of the
Plan, but until termination of the Plan the Company shall at all times reserve a
sufficient number of shares to meet the requirements of the Plan. Should any
Option expire or be cancelled prior to its exercise in full, the shares
theretofore subject to such Option, to the extent it had not been exercised, may
again be subjected to an Option under the Plan.
5. OPTION PRICE.
(a) The purchase price of each share of Stock subject to an Option
under this Plan shall be 100% of the fair market value of such share on the date
the Option is granted.
<PAGE>
(b) The fair market value of a share on a particular date shall be
deemed to be (i) in the event the Stock is listed on the New York Stock
Exchange, the mean between the highest and lowest sales prices per share of the
Stock on the New York Stock Exchange (Composite Tape) on the date, or, if there
shall have been no sale on that date, on the last preceding date on which such a
sale or sales were so reported (the "Sale Date"), or (ii) if the Stock is traded
in the over-the-counter market, the mean between the highest closing bid and
lowest closing asked price for the Stock as reported by the National Association
of Securities Dealers NASDAQ System on the Sale Date, or if not reported by such
System the mean between the closing bid and asked price on the Sale Date as
quoted by such quotation source as shall be designated by the Committee.
6. OPTION PERIOD.
Options granted under this Plan shall terminate and be of no force and
effect with respect to any shares not previously taken up by the Optionee upon
the earliest to occur of the following: (a) the expiration of ten (10) years
from the date of grant of each Option; (b) one year after the Optionee ceases to
be a Director by reason of death or disability of the Optionee; or (c) three
months after the Optionee ceases to be a Director for any reason other than
death or disability.
7. EXERCISE OF OPTIONS.
(a) The Options granted hereunder shall not be exercisable by the
Optionee until the completion of one (1) year of service as a Director following
the date of grant of such Option. Once available for purchase in accordance
with the foregoing, unpurchased shares shall remain subject to purchase until
the Option terminates in accordance with Paragraph 6 hereof.
(b) Options 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, or pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee Retirement
Income Security Act, or the rules thereunder.
(c) In the event of cessation of service as a Director for any reason
other than death or disability, Options may be exercised only with respect to
the number of shares vested and purchasable at the time of such cessation.
(d) In the event of the death or disability of an Optionee while in
service as a Director, and while Options granted hereunder to such Optionee are
still in force and unexpired under the terms of Paragraph 6 hereof, any unvested
installments of the Options shall be accelerated. Such acceleration shall be
effective as of the date of such Optionee?s death or disability. The Options
outstanding in the name of a deceased Optionee shall thereupon be exercisable in
full without regard to any installment vesting provisions.
(e) The purchase price of the shares as to which an option is exercised
shall be paid in full at the time of the exercises. Such purchase price shall
be payable in cash, or at the option of the holder of such Option, in Stock
theretofore owned by such holder (or any combination of cash and such Stock).
For purposes of determining the amount, if any, of the purchase price satisfied
by payment in Stock, such Stock shall be valued at its fair market value on the
date of exercise in accordance with subparagraph (b) of Paragraph 5. Any Stock
delivered in satisfaction of all or a portion of the purchase price shall be
appropriately endorsed for transfer and assignment to the Company. No holder of
an Option shall be, or have any of the rights or privileges of, a shareholder of
the Company in respect of any shares purchasable upon the exercise of any part
of an option unless and until certificates representing such shares shall have
been issued by the Company to such holders.
8. 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 as defined by the Code or Title I of the Employee Retirement
Income Security Act, or the rules thereunder.
9. CAPITAL CHANGE OF THE COMPANY; CERTAIN CORPORATE TRANSACTIONS.
(a) The existence of this Plan and Options granted hereunder shall not
affect in any way the right or power of the Company or its shareholders to make
or authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stocks ahead of or affecting the Company's Stock or the rights
thereof, or the dissolution or liquidation or the Company, or any sale or
transfer of all or any part or its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
(b) The shares with respect to which Options may be granted hereunder
are shares of the Stock of the Company as presently constituted. If, and
whenever, prior to the delivery by the Company of all of the shares of the Stock
which are subject to Options granted hereunder, the Company shall effect a
subdivision or consolidation or shares or other capital readjustment, the
payment of a stock dividend, a stock split, combination of shares or
recapitalization or other increase or reduction or the number of shares or the
Stock outstanding without receiving compensation therefor in money, services or
property, the number of shares of Stock available under the Plan and the number
of shares of Stock with respect to which Options granted hereunder may
thereafter be exercised shall (i) in the event of an increase in the number of
outstanding shares, be proportionately increased and the cash consideration
payable per share shall be proportionately reduced; and (ii) in the event of a
reduction in the number of outstanding shares, be proportionately reduced, and
the cash consideration payable per share shall be proportionately increased.
(c) If the Company is reorganized, or merged or consolidated or party
to a plan of exchange with another corporation pursuant to which reorganization,
merger, consolidation, or plan of exchange, stockholders of the Company receive
any shares of Stock or other securities or if the Company shall distribute
("Spin Off") securities of another corporation or entity to its shareholders,
there shall be substituted for the shares subject to the unexercised portions of
outstanding Options an appropriate number of shares of (i) each class of stock
or other securities which were distributed to the shareholders of the Company in
respect of such shares in the case of a reorganization, merger, consolidation,
or plan of exchange, or (ii) in the case of a Spin Off, the securities
distributed to shareholders of the Company together with shares of Stock;
provided, however, that all such Options may be cancelled by the Company as of
the effective date of (x) a reorganization, merger, consolidation, plan of
exchange or Spin Off or (v) any dissolution or liquidation of the Company, by
giving notice to each holder thereof or his personal representative of its
intention to do so and by permitting the purchase for a period of approximately
thirty days during the sixty days next preceding such effective date of all of
the shares subject to such outstanding Options, without regard to the
installment provisions set forth in the option agreement.
(d) Except as hereinbefore expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares of stock
or any class, or cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number of shares of Stock subject to Options
granted hereunder.
10. TAXES.
The Company may make such provisions as it may deem appropriate for the
withholding of any taxes which it determines is required in connection with any
Options granted under the Plan.
11. EFFECTIVE DATE OF PLAN.
The Plan shall be effective as of January 1, 1996. This Plan and any
options granted pursuant hereto shall be subject to the approval of the
stockholders of the Company in accordance with the provisions of Rule 16b-3 and
the applicable rules and regulations of the National Securities Dealers
Association, Inc., or any national exchange which are applicable to the Stock of
the Company.
12. AMENDMENTS OR TERMINATION.
The Board of Directors may amend, alter or discontinue the Plan, except
that no amendment or alteration shall be made which would impair the rights of
any Optionee under any Option theretofore granted, without his consent, and
except that no amendment or alteration shall be made which, without the approval
of the shareholders, would:
(a) Increase the total number of shares reserved for the
purposes of the Plan, except as is provided in Paragraph 9 of the Plan, or
decrease the option price provided for in Paragraph 5, or change the designation
of the class or persons eligible to participate in the Plan as provided in
Paragraph 3; or
(b) Increase or decrease the number of shares subject to
Option or the schedule of grants provided for in Paragraph 3; or
(c) Extend the option period provided for in Paragraph 6; or
(d) Materially increase the benefits accruing to Optionees
under the Plan;
and; provided further, that provisions hereof relating to the amount of
securities to be awarded, the exercise price of Options awarded hereunder, the
timing of awards of Options and the exercise thereof or any formula incorporated
herein which relates to any of the foregoing shall not be amended more than once
every six months, other than to comport with changes in the Code or the Employee
Retirement Income Security Act, or the rules thereunder.
13. GOVERNMENT REGULATIONS.
The Plan, and the granting and exercise of Options thereunder, and the
obligation of the Company to sell and deliver shares under such Options, shall
be subject to all applicable laws, rules and regulations, and to such approvals
by any governmental agencies or national securities exchanges as may be
required.
CHARTER COMMUNICATIONS INTERNATIONAL, INC.
/s/ STEPHEN E. RAVILLE
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STEPHEN E. RAVILLE, CHIEF EXECUTIVE OFFICER
<PAGE>
EXHIBIT 4.4
NEITHER THIS OPTION NOR THE SHARES ISSUABLE UPON EXER-CISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURI-TIES ACT OF 1933, AND NEITHER THIS OPTION NOR
THE SHARES OF COMMON STOCK ISSUABLE UPON EXER-CISE OF THIS OPTION MAY BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS EXPRESSLY PERMIT-TED UNDER THE
TERMS OF THIS OPTION.
Effective December 1, 1995
OPTION TO PURCHASE SHARES
OF COMMON STOCK
of
MAUI CAPITAL CORPORATION
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(Incorporated Under the Law of the
State of Colorado)
THIS CERTIFIES THAT, for value received, Jay T. Mueller, an individual
residing at 910 Woodland, Houston, Texas 77009 (the "Holder") is entitled,
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subject to the terms and conditions set forth herein, to purchase from Maui
Capital Corporation, a Colorado corporation ("Company"), an aggre-gate of ONE
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HUNDRED FIFTY THOUSAND (150,000) fully paid and non-assessable shares of the
common stock, $.00001 par value, of the Company (such shares of the Com-pany's
common stock being herein called the "Option Shares" and all shares of the
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Company's common stock being herein called the "Common Stock"), upon payment of
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the pur-chase price of SEVENTY CENTS ($.70) per Option Share (the "Purchase
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Price"), at any time after the date hereof and on or before 5:00 P.M. (Houston
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time) on the fifth anniversary of the vesting date of each installment of Option
Shares (each vested installment of Option Shares being exercisable for a five
year period commencing the date of vesting and terminating on the fifth
anniversary of such date), subject to the provi-sions of this Op-tion
("Option"). The number and character of the Option Shares covered hereby and
the Purchase Price thereof are subject to restrictions and adjustments as
provided herein.
1. EXERCISE OF OPTION. Upon delivery of written notice to the Company
setting forth the number of Option Shares with res-pect to which this Option is
being exer-cised at the principal office of the Company located at 11200
Westheimer, Suite 615, Houston, Texas 77042, or at such other office that the
Company may designate by written notice to the Holder, ac-companied by payment,
by cash or certi-fied check, in form and substance sat-isfactory to it, of the
Pur-chase Price for the Option Shares to be purchased, the Company shall, as
soon as is reasonably practicable, and in any event within 5 business days,
issue instructions to the Company's transfer agent for its Common Stock, to
deliver one or more certificates evidencing the number of Option Shares being
pur-chased. Notice shall be delivered in person or by registered mail, return
receipt requested, and shall be deemed received on actual delivery or within
three days after the date such notice is deposited in the mail. This Option may
be exercised either in whole or in part and, if in part, from time to time in
part; pro-vided, however, that this Option may only be exercised by the Holder
for the purchase of whole Option Shares and not frac-tions thereof unless the
Company otherwise agrees.
The Company agrees that the Option Shares so pur-chased shall be and
are deemed to be issued to the Holder hereof as the record owner of such Option
Shares as of the close of business on the date on which this Option shall have
been exercised and pay-ment made for such Option Shares as aforesaid.
2. RESERVATION OF STOCK. The Company covenants and agrees that (a) it
has or will at all appropriate times, so long as this Option is outstanding,
reserve and keep avail-able out of its treasury Common Stock and/or autho-rized
but unissued Common Stock, solely for the purpose of issuing Option Shares, from
time to time, upon the exer-cise of this Option, an adequate number of shares of
Common Stock for delivery at the times and in the manner provided herein upon
exercise of this Option; (b) the Option Shares delivered upon exercise of the
Option shall be val-idly issued and outstanding and fully paid and nonassessable
shares of Com-mon Stock; and (c) it will pay when due any and all federal and
state original issue or similar taxes which may be pay-able in respect of the
issuance of this Option or of any shares of Common Stock upon exercise of this
Option. The Company shall not, however, be required to pay any transfer tax
which may be payable with respect to any trans-fer of this Option, the issuance
of certificates of Common Stock in a name other than that of the registered
Holder of this Option or any transfer of Option Shares, all such tax being
pay-able by the Holder.
3. RESTRICTIONS ON TRANSFER. Unless this Option or the Option Shares,
as applicable, have been registered, this Option and the Certificates
representing the Option Shares shall be stamped or otherwise imprinted with a
legend substantially in the following form:
In the case of this Option:
"THIS OPTION HAS NOT BEEN REGISTERED UNDER THE SECURI-TIES ACT OF 1933, AND
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS OPTION MAY BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS
EXPRESSLY PERMITTED UNDER THE TERMS OF THIS OPTION."
In the case of the Option Shares:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE.
SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED EXCEPT UPON SUCH REGISTRATION OR UPON
DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE OR TRANSFER."
Specifically, in connection with the Securities Act of 1933 (the
"Act"), and the Texas Securities Act, upon exercise of this Option, unless a
registration statement under such Acts is effective with respect to the Option
Shares, the Company shall not be required to issue such Option Shares unless the
Company has received evidence satisfactory to it to the effect that the holder
of such Option is acquiring such Option Shares for investment and not with a
view to the distribution thereof and that such Option Shares may otherwise be
issued without registration under such Acts.
The Holders' rights hereunder are personal. The Holder may not
transfer his rights or interest in this Option and this Option is exercisable
solely by the Holder in accordance with the provisions hereof. The Holder may
not transfer this Option or any interest in this Option otherwise than by will
or the laws of descent and distribution, or pursuant to a qualified domestic
relations order as defined in the Code or as required by Title 1 of the Employee
Retirement Income Securities Act of 1994, as amended. This Option shall be
exercisable during the lifetime of the Holder only by the Holder (or by the
administrator or executor of the Holder's estate in the case of death or the
Holder's guardian or power of attorney representative in the case of
disability). This Option shall be null and void and without effect upon the
bankruptcy of the Holder, or upon any attempted assignment, transfer,
hypothecation or other disposition, except as herein provided, including without
limitation any purported assignment, whether voluntary or by operation of law,
pledge, attachment, trustee process or similar process, whether legal or
equitable, of such Option.
4. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The exis-tence of this
Option shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalization,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, common stock, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, 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, whether of a
similar character or otherwise.
If the Company shall effect a subdivision or consolida-tion of shares
or other capital readjustment, the payment of a stock dividend or other increase
or reduction of the number of shares of the Common Stock outstanding without
receiving com-pensa-tion therefor in money, services or property, then (a) the
number, class and per share price of shares of stock subject to this Option
shall be appropriately adjusted in such a manner as to entitle the Holder to
receive upon exercise of this Option, for the same consideration, the same total
number and class of shares or other securities as he would have received had he
exer-cised this Option in full immediately prior to the event requir-ing the
adjustment; and (b) the number and class of shares reserved for issuance
pursuant to this Option shall be adjusted by substituting for the total number
and class of shares of stock then reserved that number and class of shares of
stock and other securities that would have been received by the holder of an
equal number of outstanding shares of stock as a result of the event requiring
the adjustment.
After a merger of one or more corporations into the Company, or after
a consolidation of the Company and one or more corporations in which the Company
shall be the surviving corpora-tion, the Holder shall, at no additional cost, be
entitled upon exercise of this Option to receive (subject to any required action
by stockholders) in lieu of the Option Shares, the number and class of shares of
stock or other securities to which the Holder would have been entitled pursuant
to the terms of the agreement of merger or consolidation if, immediately prior
to such merger or consolidation, he had been the holder of record of the Option
Shares.
If the Company is merged into or consolidated with another corporation
under circumstances in which the Company is not the surviving corporation, or if
the Company is liquidated, or sells or otherwise disposes of substantially all
of its assets to another corporation while this Option is outstanding, (i)
sub-ject to the provisions of clause (ii) below, after the effective date of
such merger, consolidation or sale, as the case may be, the Holder shall be
entitled, upon exercise of this Option, to receive, in lieu of the Option
Shares, shares of such stock or other securities as the holders of shares of
Common Stock re-ceived pursuant to the terms of the merger, consolidation or
sale, or (ii) this Option may be cancelled by the Company as of the effective
date of any such merger, consolidation, liquidation or sale provided (x) notice
of such cancellation shall be given to the Holder and (y) the Holder shall have
the right to exercise this Option with respect to shares vested at such time
during the 30-day period preceding the effec-tive date of such merger,
consolidation, liquidation, sale or acqui-sition.
Except as hereinbefore expressly provided, the issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or services either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, this Option.
5. VESTING. Provided that Holder is, on each of the following dates,
employed by the Company or any of its subsidiaries, Holder's rights and interest
pursuant to this Option shall vest and become exercisable by the Holder as to
30,000 Option Shares on January 1, 1996; 30,000 Option Shares on January 1,
1997; 30,000 Option Shares on January 1, 1998; 30,000 Option Shares on January
1, 1999; and 30,000 Option Shares on January 1, 2000. In the event Holder is
not employed by the Company or any of its subsidiaries on any one of the
foregoing vesting dates, Option Shares which were to vest on such date and on
any subsequent date shall not vest and this Option shall not be exerciseable
with respect to such Option Shares. Vesting of the right to exercise Options is
cumulative and the Holder's rights to Vested Options shall continue until the
termination of this Option as set forth herein.
6. NOTICES OF RECORD DATE. In the event of (a) any taking by the
Company of a record of the holders of Common Stock for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than a cash dividend payable out of earned surplus of the Company) or other
distribution, or any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to receive
any other right, or (b) any capital reorganization of the Company, any
re-classification or re-capitalization of the capital stock of the Company or
any transfer of all or substantially all the assets of the Com-pany to or
consolidation or merger of the Company with or into any other person, or (c) any
voluntary or involuntary dissolution, liquidation or winding-up of the Com-pany,
then and in each such event the Company will mail or cause to be mailed to each
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, and (ii) the date on
which any such reorganization, reclassification, recapi-talization, transfer,
consolidation, merger, dissolution, liqui-dation or winding-up is to take place,
and the time, if any, as of which the holders of record of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolu-tion, liquidation or
winding-up. Such notice shall be mailed at least 30 days prior to the date
therein specified.
7. FRACTIONAL SHARES. This Option is only exercis-able with respect to
whole Option Shares and not fractions thereof unless the Company otherwise
agrees. Accordingly, the Company shall not be required to issue certificates
representing frac-tions of Option Shares upon any exercise of this Option;
pro-vided, however, in respect of any final frac-tion of a share it may, at its
sole option, in lieu of de-livering a frac-tional share, make a payment in cash
based on the then fair market value of such fraction of the underly-ing Common
Stock.
8. VIOLATION OF LAW. In addition to any other re-stric-tions contained
in this Option, the Holder may not exercise this Option, in whole or in part at
such times and from time to time as, in the reasonable opinion of counsel to the
Com-pany, the issuance and sale to Holder of the Op-tion Shares, upon exercise
of this Option, is not exempt from the registration provisions of the Act
(unless the Option and/or Option Shares, as applicable, have been regis-tered
under the Act), or violates other appli-cable laws or regu-lations.
9. REPLACEMENT OF SECURITIES. Upon receipt of evi-dence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutila-tion of
any certificates evi-dencing owner-ship of this Option and in the case of any
such loss, theft or destruction upon delivery of an indemnity agreement or, if
the Holder so elects, a surety bond rea-sonably satisfactory to the Company or,
in the case of any such mutilation, upon surrender and cancellation of any such
certificate, the Company shall forthwith execute and deliv-er, in lieu thereof,
a new Option of like tenor.
10. NO RIGHTS AS STOCKHOLDER. No Holder shall, based on his being a
Holder, be entitled to vote or receive div-idends or be deemed the holder of
Common Stock or any other security of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything con-tained
herein be construed to confer upon the Holder of this Option, as such, any of
the rights of a stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stock-holders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issue of stock, reclassification of stock, change to or of
par value, con-solidation, merger, conveyance, or otherwise) or to receive
notice of meetings, or to receive dividends or subscription rights or otherwise
until this Option shall have been exer-cised and the Option Shares purchasable
upon the exer-cise hereof shall have become deliverable as provided here-in,
unless specifically set out otherwise in this Option.
11. NONNEGOTIABILITY. The Holder of this Option, by accept-ing the
same, consents and agrees with the Company that (a) this Option is not
transferable, in whole or in part, and (b) the Company may deem and treat the
person in whose name this Option is regis-tered as the absolute, true and lawful
owner for all purposes whatsoever, and the Company shall not be affected by any
notice to the contrary.
12. MODIFICATIONS. This Option and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against whom enforcement of such change, waiver, discharge or ter-mination
is sought.
13. NOTICES. Any notice to be given to the Company under the terms
hereof shall be addressed to the Company at the address recited in paragraph 1
hereof, and any notice to the Holder shall be addressed to the Holder at the
address recited in paragraph 1 hereof or at such other address as the Company,
the Holder, and their successors or permitted assigns may here-after designate
in writ-ing to the other. Any such notice shall have been deemed given when
actually received or on the third day after it is enclosed in a properly sealed
envelope or wrapper ad-dressed as aforesaid, registered or certified and
deposited (postage and registry or certification fee prepaid) in a post office
regularly maintained by the United States Gov-ernment.
14. FORMS OF ELECTION TO EXERCISE OPTION. Any notice of exercise shall
be in a form sub-stan-tially similar to the form attached hereto as Exhibit "A".
15. ARBITRATION. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING
TO THE ISSUANCE OF THIS OPTION, OR THE ISSUANCE OR ANY OTHER MATTER RELATING TO
THE OPTION SHARES HEREUNDER, OR THE ACTUAL OR ALLEGED BREACH OF THIS OPTION, OR
THE RIGHTS OR DUTIES OR OBLIGATIONS OF THE COMPANY OR THE HOLDER HEREUNDER,
SHALL BE SETTLED BY ARBITRATION CONDUCTED IN THE CITY OF HOUSTON IN ACCORDANCE
WITH AND BY AN ARBITRATOR APPOINTED PURSUANT TO THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION IN EFFECT AT THE TIME, AND JUDGMENT UPON THE AWARD
RENDERED PURSUANT THERETO MAY BE ENTERED IN ANY COURT HAVING JURISDICTION
THEREOF, AND ALL RIGHTS OR REMEDIES OF THE COMPANY, THE HOLDER AND THEIR
SUCCESSORS TO THE CONTRARY ARE HEREBY EXPRESSLY WAIVED. THE COSTS IN CONNECTION
WITH ANY ARBITRATION PROCEEDING UNDER THIS SECTION 15 SHALL BE ASSESSED AGAINST
THE PARTIES IN THE MANNER DECIDED BY THE ARBITRATOR(S).
16. TAX WITHHOLDING. The Holder further agrees that the Company may
withhold other cash compensation due to the Holder in an amount equal to any
required withholding amount under federal or state income tax laws owing as a
result of this Option and that the Holder will pay to the Company any additional
cash, if necessary, to satisfy such withholding requirement. The Company, at
its option, may also retain and withhold Common Stock issued upon the exercise
of this Option in an amount necessary to satisfy such withholding requirement.
17. SUCCESSORS AND ASSIGNS. This Option and each provi-sion herein
shall be binding upon and applicable to, and shall inure to the benefit of the
Company and the Hold-er, their successors, assigns, heirs and representatives,
except as otherwise speci-fically provided in this Option.
18. GENDER, SECTION REFERENCES. Pronouns, wherever used herein, and of
whatever gender, shall include natural persons, corporations and entities of
every kind, the singu-lar shall include the plural wherever and as often as may
be appropriate and the plural shall include the singular wher-ever and as often
as may be appropriate. The section titles and subtitles ("Titles") used in this
------
Option are solely for convenience of references and shall not affect, modify nor
limit the provisions of this Option. Any reference to a particular Title in
this Option shall be construed as refer-ring to the provisions in the indicated
Title within this Option.
19. SEVERABILITY. If any provision of this Option, or the application
of such provision to any person or cir-cumstance, shall be held invalid or
unenforceable for any reason, the remainder of this Option, or the application
of such provision to persons or circumstances other than those to which it is
held invalid or unenforceable, shall not be affected thereby.
20. GOVERNING LAWS. This Option shall be interpreted, construed, and
enforced in accordance with the laws of the State of Texas.
21. EMPLOYMENT. Nothing within this Option shall be construed to
impose upon the Company or any affiliate any obligation to employ or to continue
to employ or maintain any other affiliation with Holder.
<PAGE>
WITNESS the seal of the Company and the signature of a duly authorized
officer of the Company.
DATED effective as of December 1, 1995.
MAUI CAPITAL CORPORATION
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Agreed and accepted:
/s/ Jay T. Mueller
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Jay T. Mueller
<PAGE>
EXHIBIT "A"
SUBSCRIPTION
FOR
MAUI CAPITAL CORPORATION
COMMON STOCK
The undersigned, JAY T. MUELLER, pursuant to the provisions of the within
Option, hereby elects to purchase ( ) shares of Common
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Stock of Company covered by the within Option.
Dated:
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Address:
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SSN/EIN:
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EXHIBIT 5.1
August 7, 1998
Securities and Exchange Commission
Judiciary Plaza
450 5th Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are counsel to Charter Communications International, Inc., a Nevada
corporation (the "Company") which is filing a Registration Statement on Form S-8
(the "Registration Statement") with the Securities and Exchange Commission (the
"Commission"). Pursuant to the Registration Statement, the Company intends to
register under the Securities Act of 1933, as amended, a total of 1,800,000
shares (the "Shares") of common stock, par value $.00001 per share (the "Common
Stock"), of the Company.
The Shares represent (i) 500,000 shares of Common Stock which are issuable
upon the exercise of options granted and to be granted pursuant to the 1996
Incentive Stock Option Plan (the "ISOP"); (ii) 500,000 shares of Common Stock
which are issuable upon the exercise of options granted pursuant to the 1996
Nonemployee Directors Stock Option Plan (the "Directors Plan"); (iii) 500,000
shares of Common Stock which are issuable upon the exercise of options granted
and to be granted pursuant to the 1996 Executive Long-Term Stock Option Plan
(the "Executive Plan") and (iv) 300,000 shares issued pursuant to non-plan
options. The ISOP, the Directors Plan, and the Executive Plan hereinafter are
referred to collectively as the "Plans."
The opinion hereinafter set forth is given to the Commission at the request
of the Company pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation
S-K. The only opinion rendered by this firm consists of the matter set forth
below (our "Opinion"), and no opinion is implied or to be inferred beyond such
matter. Additionally, our opinion is based upon and subject to the
qualifications, limitations, and exceptions set forth in this letter.
Our opinion is furnished for the benefit of the Commission solely with
regard to the Registration Statement, may be relied upon by the Commission only
in connection with the Registration Statement, and may not otherwise be relied
upon, used, quoted, or referred to by, or filed with, any other person or entity
without our prior written permission.
In rendering our Opinion, we have examined such agreements, documents,
instruments, and records as we deemed necessary or appropriate under the
circumstances for us to express our Opinion, including without limitation the
Plans. In making all of our examinations, we assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to the original documents of all documents submitted to us as copies,
and the due execution and delivery of all documents by any persons or entities
other than the Company where due execution and delivery by such persons or
entities is a prerequisite to the effectiveness of such documents.
As to various factual matters that are material to our Opinion, we have
relied upon the factual statements set forth in a certificate of officers of the
Company and a certificate of a public official. We have not independently
verified or investigated, nor do we assume any responsibility for, the factual
accuracy or completeness of such factual statements.
We do not herein express any opinion concerning any matter respecting or
affected by any laws other than the laws of the State of Texas and the federal
laws of the United States that are now in effect and that, in the exercise of
reasonable professional judgment, are normally considered in transactions such
as those contemplated by the issuance of the Shares pursuant to the Plans. The
Opinion hereinafter set forth is based upon pertinent laws and facts in
existence as of the date hereof, and we expressly disclaim any obligation to
advise you of changes to such pertinent laws or facts that hereafter may come to
our attention.
Based upon and subject to the foregoing, we are of the Opinion that
the Shares, when issued in accordance with the terms of the Plans against
payment in full of the purchase price therefor, will be validly issued, fully
paid, and nonassessable.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement.
Sincerely yours,
Brown, Parker & Leahy, L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated March 31, 1998 included in Charter Communications
International, Inc.-s Annual Report on Form 10-K/SB for the year ending
December 31, 1997 into this Registration Statement.
Arthur Andersen LLP
Atlanta, Georgia
August 7, 1998
