<PAGE> 1
As filed with the Securities and Exchange Commission on October 24, 1994
REGISTRATION NO. 33-54263
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ON
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
______________________
<TABLE>
<S> <C> <C>
TELE-COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 4841 84-1260157
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) (Primary Standard Industrial Classification Code Number) Identification No.)
</TABLE>
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111-3000
(303) 267-5500
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
______________________
Tele-Communications, Inc. 1994 Stock Incentive Plan
(formerly TCI/Liberty Holding Company 1994 Stock Incentive Plan)
(Full title of the plan)
______________________
Stephen M. Brett, Esq.
Tele-Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111-3000
(303) 267-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________________
Copy to:
Robert W. Murray Jr., Esq.
Baker & Botts, L.L.P.
885 Third Avenue
New York, New York 10022-4834
(212) 705-5000
______________________
===============================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the employee benefit plan
information required by Item 1 of this Form and the statement of availability
of registrant information and other information required by Item 2 of this Form
will be sent or given to participants as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
Rule 428(a) 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(a)(2) under the Securities Act. Upon request, the Registrant shall
furnish to the Commission or its staff a copy or copies of all the documents
included in such file.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
On June 28, 1994, the Commission declared effective under the
Securities Act a Registration Statement on Form S-4 (Reg. No. 33-54263) (the
"Form S-4 Registration Statement") of the Company, which registered the offer
and sale of up to 539,941,193 shares of Class A Common Stock, par value $1.00
per share, of the Company (the "Class A Common Stock") in connection with the
transactions (the "Mergers") contemplated by an Agreement and Plan of Merger,
dated as of January 27, 1994, as amended (the "Merger Agreement"), by and among
the Company, Liberty Media Corporation, a Delaware corporation ("Liberty"), TCI
Communications, Inc. (formerly, and at January 27, 1994, Tele-Communications,
Inc., and sometimes referred to herein as "Old TCI"), a Delaware corporation,
TCI Mergerco, Inc., a Delaware corporation and Liberty Mergerco, Inc., a
Delaware corporation. Pursuant to the Merger Agreement and certain Assumption
and Amended and Restated Stock Option Agreements, holders of stock options
and/or stock appreciation rights granted (or assumed) by Old TCI and holders of
stock options and/or stock appreciation rights granted by Liberty
(collectively, the "Assumed Options and SARs") surrendered the Assumed Options
and SARs to the Company following the Mergers and the Company assumed the
Assumed Options and SARs and in place thereof substituted new stock options
(the "Options") and stock appreciation rights (the "SARs") under the
Tele-Communications, Inc. 1994 Stock Incentive Plan (formerly, and at June 28,
1994, the TCI/Liberty Holding Company 1994 Stock Incentive Plan) (the "Plan").
The shares covered by the Form S-4 Registration Statement included up to
9,750,336 shares of Class A Common Stock issuable upon exercise of the Options
and the SARs. This Post-Effective Amendment to Form S-4 Registration Statement
on Form S-8 Registration Statement (this "Registration Statement") also covers
the shares of Class A Common Stock issuable upon exercise of the Options and
the SARs.
II-1
<PAGE> 4
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates in this Registration Statement by
reference: (i) Old TCI's Annual Report on Form 10-K for the year ended December
31, 1993, as amended by Form 10-K/A (Amendment 1) (Commission File No. 0-5550),
(ii) Old TCI's Quarterly Report on Form 10-Q for the quarter ended March 31,
1994, as amended by Form 10-Q/A (Amendment 1) (Commission File No. 0-5550),
(iii) Old TCI's Quarterly Report on Form 10-Q for the quarter ended June 30,
1994 (Commission File No. 0-5550), (iv) Old TCI's Current Reports on Form 8-K
dated February 15, 1994, February 25, 1994, April 6, 1994 and May 27, 1994, as
amended by Form 8-K/A (Amendment 1) (Commission File No. 0-5550), (v) the
Company's Current Reports on Form 8-K dated August 5, 1994, August 18, 1994 and
August 26, 1994 (Commission File No. 0-20421) and (vi) the description of the
Class A Common Stock contained in the Company's registration statement on Form
8-B filed with the Commission on July 13, 1994, together with all amendments or
reports filed for the purpose of updating such description, to the extent of
such updating.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, after the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the Class A Common Stock
are being passed upon for the Company by Baker & Botts, L.L.P., 885 Third
Avenue, New York, New York 10022. Mr. Jerome H. Kern, a partner of Baker &
Botts, L.L.P., is a director of the Company. Mr. Kern holds options to
purchase shares of Class A Common Stock, which shares are covered by this
Registration Statement.
The consolidated balance sheets of TCI Communications, Inc. (formerly
Tele-Communications, Inc.) and subsidiaries as of December 31, 1993 and 1992,
and the related consolidated statements of operations, stockholders' equity,
and cash flows for each of the years in the three-year period ended December
31, 1993, and the related financial statement schedules, which appear in the
December 31, 1993 Annual Report on Form 10-K, as amended, of TCI
Communications, Inc., have been incorporated by reference herein in reliance
upon the reports, dated March 21, 1994, of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The report of
KPMG Peat Marwick LLP refers to a change in the method of accounting for income
taxes in 1993.
II-2
r
<PAGE> 5
The consolidated balance sheets of Liberty Media Corporation and
subsidiaries (Successor) as of December 31, 1993 and 1992, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
the years ended December 31, 1993 and 1992 and the period from April 1, 1991 to
December 31, 1991 (Successor Periods) and the consolidated statements of
operations, stockholders' equity, and cash flows of "Liberty Media" (a
combination of certain programming interests and cable television assets of TCI
Communications, Inc.) (Predecessor) for the period from January 1, 1991 to
March 31, 1991 (Predecessor Period), which appear in the Form 8-K of TCI
Communications, Inc. (formerly Tele-Communications, Inc.) dated April 6, 1994,
have been incorporated by reference herein in reliance upon the report, dated
March 18, 1994, of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing. The report of KPMG Peat Marwick
LLP refers to a change in the method of accounting for income taxes in 1993.
The financial statements of TeleCable Corporation as of December 31,
1993 and 1992 and for each of the two years in the period ended December 31,
1993, incorporated herein by reference to Old TCI's Current Report on Form 8-K
dated August 26, 1994, have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides,
generally, that a corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any action, suit or
proceeding (except actions by or in the right of the corporation) by reason of
the fact that such person is or was a director or officer of the corporation
against all expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. A corporation may similarly indemnify such person for
expenses actually and reasonably incurred by him in connection with the defense
or settlement of any action or suit by or in the right of the corporation,
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and, in the
case of claims, issues and matters as to which such person shall have been
adjudged liable to the corporation, provided that a court shall have
determined, upon application, that, despite the adjudication of liability but
in view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
Section 102(b)(7) of the Delaware General Corporation Law provides,
generally, that the certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision may not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under section 174 of Title 8, or (iv) for any transaction from which the
director derived an improper personal benefit. No such provision may eliminate
or limit the liability of a director for any act or omission occurring prior to
the date when such provision becomes effective.
II-3
<PAGE> 6
Article V, Section E of the Company's Restated Certificate of
Incorporation provides as follows:
1. Limitation on Liability.
To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be
amended, a director of the Corporation shall not be liable to
the Corporation or any of its stockholders for monetary
damages for breach of fiduciary duty as a director. Any
repeal or modification of this paragraph 1 shall be
prospective only and shall not adversely affect any
limitation, right or protection of a director of the
Corporation existing at the time of such repeal or
modification.
2. Indemnification.
(a) RIGHT TO INDEMNIFICATION. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted
by applicable law as it presently exists or may hereafter be
amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (a "proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, is or was
a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership,
joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans,
against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such
person. Such right of indemnification shall inure whether or
not the claim asserted is based on matters which antedate the
adoption of this Section E. The Corporation shall be required
to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or
part thereof) was authorized by the Board of Directors of the
Corporation.
(b) PREPAYMENT OF EXPENSES. The Corporation shall pay
the expenses (including attorneys' fees) incurred in defending
any proceeding in advance of its final disposition, PROVIDED,
HOWEVER, that the payment of expenses incurred by a director
or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer
is not entitled to be indemnified under this paragraph or
otherwise.
(c) CLAIMS. If a claim for indemnification or payment of
expenses under this paragraph is not paid in full within 60
days after a written claim therefor has been received by the
Corporation, the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the
requested indemnification or payment of expenses under
applicable law.
(d) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on
any person by this paragraph shall not be exclusive of any
other rights which such person may or hereafter acquire under
any statute, provision of this Certificate, the Bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise.
II-4
<PAGE> 7
(e) OTHER INDEMNIFICATION. The Corporation's obligation,
if any, to indemnify any person who was or is serving at its
request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, enterprise or
nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or nonprofit
entity.
Article II, Section 2.9 of the Company's Bylaws also contains an
indemnity provision, requiring the Company to indemnify members of the Board of
Directors and officers of the Company and their respective heirs, personal
representatives and successors in interest for or on account of any action
performed on behalf of the Company, to the extent provided by the Delaware
corporation laws and the Company's Certificate of Incorporation.
The Company has also entered into indemnification agreements with each
of its directors (each director, an "indemnitee"). The indemnification
agreements provide (i) for the prompt indemnification to the fullest extent
permitted by law against any and all expenses, including attorneys' fees and
all other costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness or participating in (including on
appeal), or in preparing for ("Expenses"), any threatened, pending or completed
action, suit or proceeding, or any inquiry or investigation ("Claim"), related
to the fact that such indemnitee is or was a director, officer, employee, agent
or fiduciary of the Company or is or was serving at the Company's request as a
director, officer, employee, trustee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, or by reason of anything done or not done by a director or officer
in any such capacity, and against any and all judgments, fines, penalties and
amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection therewith) of any Claim, unless the
Reviewing Party (one or more members of the Board of Directors or other person
appointed by the Board of Directors, who is not a party to the particular
claim, or independent legal counsel) determines that such indemnification is
not permitted under applicable law and (ii) for the prompt advancement of
Expenses, and for reimbursement to the Company if the Reviewing Party
determines that such indemnitee is not entitled to such indemnification under
applicable law. In addition, the indemnification agreements provide (i) a
mechanism through which an indemnitee may seek court relief in the event the
Reviewing Party determines that the indemnitee would not be permitted to be
indemnified under applicable law (and therefore is not entitled to
indemnification or expense advancement under the indemnification agreement) and
(ii) indemnification against all expenses (including attorneys' fees), and
advancement thereof if requested, incurred by the indemnitee in seeking to
collect an indemnity claim or advancement of expenses from the Company or
incurred in seeking to recover under a directors' and officers' liability
insurance policy, regardless of whether successful or not. Furthermore, the
indemnification agreements provide that after there has been a "change in
control" in the Company (as defined in the indemnification agreements), other
than a change in control approved by a majority of directors who were directors
prior to such change, then, with respect to all determinations regarding a
right to indemnity and the right to advancement of Expenses, the Company will
seek legal advice only from independent legal counsel selected by the
indemnitee and approved by the Company.
The indemnification agreements impose upon the Company the burden of
proving that an indemnitee is not entitled to indemnification in any particular
case and negate certain presumptions that may otherwise be drawn against an
indemnitee seeking indemnification in connection with the termination of
actions in certain circumstances. Indemnitees' rights under the
indemnification agreements are not exclusive of any other rights they may have
under Delaware law, the Company's Bylaws or otherwise. Although not requiring
the maintenance of directors' and officers' liability insurance, the
indemnification agreements require that indemnitees
II-5
<PAGE> 8
be provided with the maximum coverage available for any Company director or
officer if there is such a policy.
The Company may purchase liability insurance policies covering its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Agreement and Plan of Merger, dated as of January 27, 1994, by
and among the Company, Liberty, Old TCI, TCI Mergerco, Inc.
and Liberty Mergerco, Inc. (incorporated herein by reference
to Old TCI's Current Report on Form 8-K dated February 15,
1994 (Commission File No. 0-5550)).
4.2 Amendment No. 1, dated as of March 30, 1994, to Agreement and
Plan of Merger, dated as of January 27, 1994, by and among the
Company, Liberty, Old TCI, TCI Mergerco, Inc. and Liberty
Mergerco, Inc. (incorporated herein by reference to Old TCI's
Current Report on Form 8-K dated April 6, 1994 (Commission
File No. 0-5550)).
4.3 Amendment No. 2, dated as of August 4, 1994, to Agreement and
Plan of Merger, dated as of January 27, 1994, by and among the
Company, Liberty, Old TCI, TCI Mergerco, Inc. and Liberty
Mergerco, Inc. (incorporated herein by reference to the
Company's Current Report on Form 8-K dated August 18, 1994
(Commission File No. 0-20421)).
4.4 Tele-Communications, Inc. 1994 Stock Incentive Plan (formerly
TCI/Liberty Holding Company 1994 Stock Incentive Plan)
(previously filed as Appendix IV to the Proxy
Statement/Prospectus filed as part of the Form S-4
Registration Statement, Reg. No. 33-54263).
4.5 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Liberty and grantee relating to
stock appreciation rights granted pursuant to letter dated
September 17, 1991.
4.6 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Liberty and grantee relating to
the assumption of options and related stock appreciation
rights granted under the Liberty Media Corporation 1991 Stock
Incentive Plan pursuant to letter dated July 26, 1993.
4.7 Assumption and Amended and Restated Stock Option Agreement
between the Company, Old TCI and a director of Old TCI
relating to assumption of options and related stock
appreciation rights
II-6
<PAGE> 9
granted outside of an employee benefit plan pursuant to Old
TCI's 1993 Non-Qualified Stock Option and Stock Appreciation
Rights Agreement.
4.8 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Old TCI and grantee relating to
assumption of options and related stock appreciation rights
granted under Old TCI's 1992 Stock Incentive Plan pursuant to
Old TCI's 1993 Non-Qualified Stock Option and Stock
Appreciation Rights Agreement.
4.9 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Old TCI and grantee relating to
assumption of options and related stock appreciation rights
under Old TCI's 1992 Stock Incentive Plan pursuant to Old
TCI's 1992 Non-Qualified Stock Option and Stock Appreciation
Rights Agreement.
4.10 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Old TCI and grantee relating to
assumption of grants under Old TCI's 1982 Incentive Stock
Option Plan pursuant to letter dated November 1989.
4.11 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Old TCI and grantee relating to
assumption of grants pursuant to the Agreement and Plan of
Merger dated June 6, 1991 between United Artists Entertainment
Company ("UAE") and Old TCI.
4.12 Form of letter dated September 17, 1991 from Liberty to
grantee relating to grant of stock appreciation rights.
4.13 Form of letter dated July 26, 1993 from Liberty to grantee
relating to grant of options and stock appreciation rights.
4.14 Form of 1993 Non-Qualified Stock Option and Stock Appreciation
Rights Agreement between Old TCI and grantee.
4.15 Form of 1992 Non-Qualified Stock Option and Stock Appreciation
Rights Agreement between Old TCI and grantee.
4.16 Form of letter dated November 1989 from Old TCI to grantee
relating to grant of options.
4.17 Agreement and Plan of Merger, dated as of June 6, 1991,
between UAE and Old TCI (incorporated herein by reference to
Old TCI's Current Report on Form 8-K, dated June 12, 1991
(Commission File No. 0-5550)).
4.18 First Amendment to Agreement and Plan of Merger, dated as of
June 6, 1991, between UAE and Old TCI (incorporated herein by
reference to Old TCI's Current Report on Form 8-K, dated
II-7
<PAGE> 10
December 12, 1991, as amended by Form 8 amendment dated
January 28, 1992 (Commission File No. 0-5550)).
4.19 Forms of Assumption and Amended and Restated Stock Option
Agreements relating to options granted under the United
Artists Entertainment Company 1988 Incentive and Non-Qualified
Stock Option Plan (the "1988 Plan") and executed by employees
who did not have employment agreements with UAE (incorporated
herein by reference to Old TCI's Post-Effective Amendment No.
1 to Form S-4 Registration Statement on Form S-8, as filed on
March 2, 1992 (Reg. No. 33-43009)).
4.20 Forms of Assumption and Amended and Restated Stock Option
Agreements relating to options granted under the 1988 Plan and
executed by employees who had employment agreements with UAE
(incorporated herein by reference to Old TCI's Post-Effective
Amendment No. 1 to Form S-4 Registration Statement on Form
S-8, as filed on March 2, 1992 (Reg. No. 33-43009)).
4.21 Forms of Second Assumption and Amended and Restated Stock
Option Agreements relating to options granted under the
Amended and Restated United Artists Communications, Inc. 1983
Stock Option Plan (the "1983 Plan") and executed by employees
who did not have employment agreements with UAE (incorporated
herein by reference to Old TCI's Post-Effective Amendment No.
1 to Form S-4 Registration Statement on Form S-8, as filed on
March 2, 1992 (Reg. No. 33-43009)).
4.22 Forms of Second Assumption and Amended and Restated Stock
Option Agreements relating to options granted under the 1983
Plan and executed by employees who had employment agreements
with UAE (incorporated herein by reference to Old TCI's
Post-Effective Amendment No. 1 to Form S-4 Registration
Statement on Form S-8, as filed on March 2, 1992 (Reg. No.
33-43009)).
5 Opinion of Baker & Botts, L.L.P., Counsel to Registrant.
23.1 Consent of Baker & Botts, L.L.P.
(included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of Price Waterhouse LLP.
24 Powers of Attorney (previously filed as Exhibit 24 to the Form
S-4 Registration Statement, Reg. No. 33-54263).
II-8
<PAGE> 11
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(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;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the 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 Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-9
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Post-Effective Amendment on Form S-8 to Form S-4 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Greenwood Village, State of Colorado, on October 24,
1994.
TELE-COMMUNICATIONS, INC.
By: /s/ Stephen M. Brett
_____________________________
Name: Stephen M. Brett
Title: Executive Vice President
II-10
<PAGE> 13
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment on Form S-8 to Form S-4 Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board
- -------------------- and Director
(Bob Magness)
* President and Director
- -------------------- (Principal Executive
(John C. Malone) Officer)
* Executive Vice President and
- -------------------- Director (Principal Financial and Accounting
(Donne F. Fisher) Officer)
* Director
- --------------------
(John W. Gallivan)
* Director
- --------------------
(Kim Magness)
* Director
- --------------------
(Robert A. Naify)
* Director
- --------------------
(Jerome H. Kern)
* Director
- --------------------
(Tony Coelho)
* Director
- --------------------
(R. E. Turner)
* By: /s/ Stephen M. Brett October 24, 1994
-----------------------------
Stephen M. Brett, Esq.
Attorney-in-Fact
</TABLE>
II-11
<PAGE> 14
INDEX TO EXHIBITS
Exhibit
Number
4.1 Agreement and Plan of Merger, dated as of January 27, 1994, by
and among the Company, Liberty, Old TCI, TCI Mergerco, Inc.
and Liberty Mergerco, Inc. (incorporated herein by reference
to Old TCI's Current Report on Form 8-K dated February 15,
1994 (Commission File No. 0-5550)).
4.2 Amendment No. 1, dated as of March 30, 1994, to Agreement and
Plan of Merger, dated as of January 27, 1994, by and among the
Company, Liberty, Old TCI, TCI Mergerco, Inc. and Liberty
Mergerco, Inc. (incorporated herein by reference to Old TCI's
Current Report on Form 8-K dated April 6, 1994 (Commission
File No. 0-5550)).
4.3 Amendment No. 2, dated as of August 4, 1994, to Agreement and
Plan of Merger, dated as of January 27, 1994, by and among the
Company, Liberty, Old TCI, TCI Mergerco, Inc. and Liberty
Mergerco, Inc. (incorporated herein by reference to the
Company's Current Report on Form 8-K dated August 18, 1994
(Commission File No. 0-20421)).
4.4 Tele-Communications, Inc. 1994 Stock Incentive Plan (formerly
TCI/Liberty Holding Company 1994 Stock Incentive Plan)
(previously filed as Appendix IV to the Proxy
Statement/Prospectus filed as part of the Form S-4
Registration Statement, Reg. No. 33-54263).
4.5 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Liberty and grantee relating to
stock appreciation rights granted pursuant to letter dated
September 17, 1991.
4.6 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Liberty and grantee relating to
the assumption of options and related stock appreciation
rights granted under the Liberty Media Corporation 1991 Stock
Incentive Plan pursuant to letter dated July 26, 1993.
4.7 Assumption and Amended and Restated Stock Option Agreement
between the Company, Old TCI and a director of Old TCI
relating to assumption of options and related stock
appreciation rights granted outside of an employee benefit
plan pursuant to Old TCI's 1993 Non-Qualified Stock Option and
Stock Appreciation Rights Agreement.
4.8 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Old TCI and grantee relating to
assumption of options and related stock appreciation rights
granted
<PAGE> 15
under Old TCI's 1992 Stock Incentive Plan pursuant to
Old TCI's 1993 Non-Qualified Stock Option and Stock
Appreciation Rights Agreement.
4.9 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Old TCI and grantee relating to
assumption of options and related stock appreciation rights
under Old TCI's 1992 Stock Incentive Plan pursuant to Old
TCI's 1992 Non-Qualified Stock Option and Stock Appreciation
Rights Agreement.
4.10 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Old TCI and grantee relating to
assumption of grants under Old TCI's 1982 Incentive Stock
Option Plan pursuant to letter dated November 1989.
4.11 Form of Assumption and Amended and Restated Stock Option
Agreement between the Company, Old TCI and grantee relating to
assumption of grants pursuant to the Agreement and Plan of
Merger dated June 6, 1991 between United Artists Entertainment
Company ("UAE") and Old TCI.
4.12 Form of letter dated September 17, 1991 from Liberty to
grantee relating to grant of stock appreciation rights.
4.13 Form of letter dated July 26, 1993 from Liberty to grantee
relating to grant of options and stock appreciation rights.
4.14 Form of 1993 Non-Qualified Stock Option and Stock Appreciation
Rights Agreement between Old TCI and grantee.
4.15 Form of 1992 Non-Qualified Stock Option and Stock Appreciation
Rights Agreement between Old TCI and grantee.
4.16 Form of letter dated November 1989 from Old TCI to grantee
relating to grant of options.
4.17 Agreement and Plan of Merger, dated as of June 6, 1991,
between UAE and Old TCI (incorporated herein by reference to
Old TCI's Current Report on Form 8-K, dated June 12, 1991
(Commission File No. 0-5550)).
4.18 First Amendment to Agreement and Plan of Merger, dated as of
June 6, 1991, between UAE and Old TCI (incorporated herein by
reference to Old TCI's Current Report on Form 8-K, dated
December 12, 1991, as amended by Form 8 amendment dated
January 28, 1992 (Commission File No. 0-5550)).
4.19 Forms of Assumption and Amended and Restated Stock Option
Agreements relating to options granted under the United
Artists Entertainment Company 1988 Incentive and Non-Qualified
Stock Option Plan (the "1988 Plan") and executed by employees
who did not have employment agreements with UAE (incorporated
herein by reference to Old TCI's Post-Effective Amendment No.
1 to
-2-
<PAGE> 16
Form S-4 Registration Statement on Form S-8, as filed on March
2, 1992 (Reg. No. 33-43009)).
4.20 Forms of Assumption and Amended and Restated Stock Option
Agreements relating to options granted under the 1988 Plan and
executed by employees who had employment agreements with UAE
(incorporated herein by reference to Old TCI's Post-Effective
Amendment No. 1 to Form S-4 Registration Statement on Form
S-8, as filed on March 2, 1992 (Reg. No. 33-43009)).
4.21 Forms of Second Assumption and Amended and Restated Stock
Option Agreements relating to options granted under the
Amended and Restated United Artists Communications, Inc. 1983
Stock Option Plan (the "1983 Plan") and executed by employees
who did not have employment agreements with UAE (incorporated
herein by reference to Old TCI's Post-Effective Amendment No.
1 to Form S-4 Registration Statement on Form S-8, as filed on
March 2, 1992 (Reg. No. 33-43009)).
4.22 Forms of Second Assumption and Amended and Restated Stock
Option Agreements relating to options granted under the 1983
Plan and executed by employees who had employment agreements
with UAE (incorporated herein by reference to Old TCI's
Post-Effective Amendment No. 1 to Form S-4 Registration
Statement on Form S-8, as filed on March 2, 1992 (Reg. No.
33-43009)).
5 Opinion of Baker & Botts, L.L.P., Counsel to Registrant.
23.1 Consent of Baker & Botts, L.L.P.
(included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of Price Waterhouse LLP.
24 Powers of Attorney (previously filed as Exhibit 24 to the Form
S-4 Registration Statement, Reg. No. 33-54263).
-3-
<PAGE> 1
EXHIBIT 4.5
<PAGE> 2
ASSUMPTION
AND
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") entered into as of
________________________, 1994, by and between LIBERTY MEDIA CORPORATION
("Liberty") and TELE-COMMUNICATIONS, INC. (formerly known as TCI/LIBERTY
HOLDING COMPANY) ("TCI/Liberty"), and _________________ ("Employee").
W I T N E S S E T H:
WHEREAS, pursuant to a letter dated September 17, 1991 (the
"1991 Agreement"), Employee was granted by Liberty a stock appreciation right
with respect to _____ shares of Liberty Class A Common Stock, $1.00 par value
per share; and
WHEREAS, the Merger Agreement, dated as of January 27, 1994 as
amended, among Tele-Communications, Inc., Liberty Media Corporation,
TCI/Liberty Holding Company, TCI Mergerco, Inc., and Liberty Mergerco, Inc.
(the "Merger Agreement") provides, among other things, that at the Effective
Time as specified in the Merger Agreement, each outstanding SAR shall be
assumed by TCI/Liberty pursuant to Section 10.1(b) of the Tele-Communications,
Inc. 1994 Stock Incentive Plan (the "1994 Plan"); and
WHEREAS, in exchange for good and valuable consideration,
Employee desires to receive an award under the 1994 Plan, upon the assumption
of and in substitution for the SARs granted under the 1991 Agreement pursuant
to this Agreement under the 1994 Plan.
NOW, THEREFORE, Employee, Liberty and TCI/Liberty agree as
follows:
1. Upon the Effective Time of the mergers pursuant to the Merger
Agreement, TCI/Liberty shall award Employee a stock appreciation right with
respect to an aggregate number of shares of common stock of TCI/Liberty (an
"Award") under the 1994 Plan upon the assumption of, and in substitution for,
the SARs previously granted under the 1991 Agreement. The number of shares
associated with the Award and the exercise price of each share with respect to
the Award under the 1994 Plan shall be determined in accordance with the Merger
Agreement.
<PAGE> 3
2. As of the Effective Time, Employee agrees to substitute the
SARs granted pursuant to the 1991 Agreement for Awards under the 1994 Plan.
3. To the extent practicable, the specific terms and conditions
of the Awards shall be subject to and governed by the provisions of the 1991
Agreement.
4. The Awards shall be exercisable in accordance with the
provisions of the 1991 Agreement.
5. The Awards which are in substitution for the SARs will be
grants under the 1994 Plan.
6. Except as otherwise set forth herein, Employee's right to the
Awards shall be subject to and governed by the provisions of the 1991 Agreement
and the 1994 Plan.
7. The assumption of options under this Agreement shall be
contingent on the consummation of the transaction contemplated by the Merger
Agreement, and if the Merger Agreement is terminated prior to the Effective
Time, this Agreement will be void and of no effect.
8. Unless otherwise expressly stated herein, in the event of any
inconsistency between the terms of the 1994 Plan and the 1991 Agreement and
this Agreement, the terms of the 1994 Plan shall control to the extent they are
not inconsistent with paragraph 2.7(b)(iii) of the Merger Agreement.
9. The Employee, Liberty and TCI/Liberty hereby declare and
represent that no promise or agreement not herein expressed has been made and
that this Agreement contains the entire agreement between the parties hereto
with respect to the options.
-2-
<PAGE> 4
IN WITNESS WHEREOF, Tele-Communications, Inc. and Liberty
Media Corporation have caused this Agreement to be executed by their duly
authorized officers, and Employee has hereunto set his hand, effective as of
the date first above written.
TELE-COMMUNICATIONS, INC.
By__________________________
LIBERTY MEDIA CORPORATION
By__________________________
EMPLOYEE
By__________________________
-3-
<PAGE> 1
EXHIBIT 4.6
<PAGE> 2
ASSUMPTION
AND
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") entered into as of
________________________, 1994, by and between LIBERTY MEDIA CORPORATION
("Liberty") and TELE-COMMUNICATIONS, INC. (formerly known as TCI/LIBERTY
HOLDING COMPANY) ("TCI/Liberty"), and ________________________________________
("Employee").
W I T N E S S E T H:
WHEREAS, pursuant to a letter dated July 26, 1993, and
effective June 3, 1993 (the "1993 Agreement"), Employee has been granted by
Liberty an option to purchase an aggregate of _______ shares of common stock of
TCI ("Options") and a stock appreciation right with respect to each Option (the
"Tandem SARs") under the Liberty Media Corporation 1991 Stock Incentive Plan
(the "1991 Plan"); and
WHEREAS, the Merger Agreement, dated as of January 27, 1994 as
amended, among Tele-Communications, Inc., Liberty Media Corporation,
TCI/Liberty Holding Company, TCI Mergerco, Inc., and Liberty Mergerco, Inc.
(the "Merger Agreement") provides, among other things, that at the Effective
Time as specified in the Merger Agreement, each outstanding Option Share and
Tandem SAR shall be assumed by TCI/Liberty pursuant to Section 10.1(b) of the
Tele-Communications, Inc. 1994 Stock Incentive Plan (the "1994 Plan"); and
WHEREAS, in exchange for good and valuable consideration,
Employee desires to receive an award under the 1994 Plan, upon the assumption
of and in substitution for the Options and Tandem SARs granted under the 1993
Agreement pursuant to this Agreement under the 1994 Plan.
NOW, THEREFORE, Employee, Liberty and TCI/Liberty agree as
follows:
1. Upon the Effective Time of the mergers pursuant to the Merger
Agreement, TCI/Liberty shall grant Employee an option to purchase an aggregate
number of shares of common stock of TCI/Liberty and a stock appreciation right
with respect to each option (an "Award") under the 1994 Plan upon the
assumption of, and in substitution for, the Options and Tandem SAR's previously
granted under the 1993 Agreement and the 1991 Plan. The number
<PAGE> 3
of shares and the exercise price of each share with respect to the Award under
the 1994 Plan shall be determined in accordance with the Merger Agreement.
2. As of the Effective Time, Employee agrees to substitute the
Options and Tandem SARs granted pursuant to the 1993 Agreement for Awards under
the 1994 Plan.
3. To the extent practicable, the specific terms and conditions
of the Awards shall be subject to and governed by the provisions of the 1993
Agreement.
4. The Awards shall be exercisable in accordance with the
provisions of the 1993 Agreement.
5. The Awards which are in substitution for the Options and SAR's
will be grants under the 1994 Plan.
6. Except as otherwise set forth herein, Employee's right to the
Awards shall be subject to and governed by the provisions of the 1993 Agreement
and the 1994 Plan.
7. The assumption of options under this Agreement shall be
contingent on the consummation of the transaction contemplated by the Merger
Agreement, and if the Merger Agreement is terminated prior to the Effective
Time, this Agreement will be void and of no effect.
8. Unless otherwise expressly stated herein, in the event of any
inconsistency between the terms of the 1994 Plan and the 1993 Agreement and
this Agreement, the terms of the 1994 Plan shall control to the extent they are
not inconsistent with paragraph 2.7(b)(iii) of the Merger Agreement.
9. The Employee, Liberty and TCI/Liberty hereby declare and
represent that no promise or agreement not herein expressed has been made and
that this Agreement contains the entire agreement between the parties hereto
with respect to the options.
-2-
<PAGE> 4
IN WITNESS WHEREOF, Tele-Communications, Inc. and Liberty
Media Corporation have caused this Agreement to be executed by their duly
authorized officers, and Employee has hereunto set his hand, effective as of
the date first above written.
TELE-COMMUNICATIONS, INC.
By__________________________
LIBERTY MEDIA CORPORATION
By__________________________
EMPLOYEE
By__________________________
-3-
<PAGE> 1
EXHIBIT 4.7
<PAGE> 2
ASSUMPTION
AND
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") entered into as of
________________________, 1994, by and between TCI COMMUNICATIONS, INC.
(formerly known as TELE-COMMUNICATIONS, INC.) ("TCI") and TELE-COMMUNICATIONS,
INC. (formerly known as TCI/LIBERTY HOLDING COMPANY) ("TCI/Liberty"), and
__________________________ ("Grantee").
W I T N E S S E T H:
WHEREAS, pursuant to the Non-Qualified Stock Option and Stock
Appreciation Rights Agreement dated November 12, 1993 (the "1993 Option
Agreement"), Grantee has been granted by TCI an option to purchase an aggregate
of _______ shares of common stock of TCI ("Options") and a stock appreciation
right with respect to each Option (the "Tandem SARs"); and
WHEREAS, Section 12(b) of the Option Agreement provides for
the assumption of the Option Agreement and to make such new awards, as nearly
as may be practicable, equivalent to the awards granted under the Option
Agreement; and
WHEREAS, the Merger Agreement, dated as of January 27, 1994 as
amended, among Tele-Communications, Inc., Liberty Media Corporation,
TCI/Liberty Holding Company, TCI Mergerco, Inc., and Liberty Mergerco, Inc.
(the "Merger Agreement") provides, among other things, that at the Effective
Time as specified in the Merger Agreement, each outstanding Option Share and
Tandem SAR shall be assumed by TCI/Liberty pursuant to Section 10.1(b) of the
Tele-Communications, Inc. 1994 Stock Incentive Plan (the "1994 Plan"); and
WHEREAS, in exchange for good and valuable consideration,
Grantee desires to receive an award under the 1994 Plan, upon the assumption of
and in substitution for the Options and Tandem SARs granted under the 1993
Option Agreement pursuant to this Agreement under the 1994 Plan.
<PAGE> 3
NOW, THEREFORE, Grantee, TCI and TCI/Liberty agree as follows:
1. Upon the Effective Time of the mergers pursuant to the Merger
Agreement, TCI/Liberty shall grant Grantee an option to purchase an aggregate
number of shares of common stock of TCI/Liberty and a stock appreciation right
with respect to each option (an "Award") under the 1994 Plan upon the
assumption of, and in substitution for, the Options and Tandem SAR's previously
granted under the 1993 Option Agreement. The number of shares and the exercise
price of each share with respect to the Award under the 1994 Plan shall be
determined in accordance with the Merger Agreement.
2. As of the Effective Time, Grantee agrees to substitute the
Options and Tandem SARs granted pursuant to the 1993 Option Agreement for
Awards under the 1994 Plan.
3. To the extent practicable, the specific terms and conditions
of the Awards shall be subject to and governed by the provisions of the 1993
Option Agreement.
4. The Awards shall be exercisable in accordance with the
provisions of the 1993 Option Agreement.
5. The Awards which are in substitution for the Options and SAR's
will be grants under the 1994 Plan.
6. Except as otherwise set forth herein, Grantee's right to the
Awards shall be subject to and governed by the provisions of the 1993 Option
Agreement and the 1994 Plan.
7. The assumption of options under this Agreement shall be
contingent on the consummation of the transaction contemplated by the Merger
Agreement, and if the Merger Agreement is terminated prior to the Effective
Time, this Agreement will be void and of no effect.
8. Unless otherwise expressly stated herein, in the event of any
inconsistency between the terms of the 1994 Plan and the 1993 Option Agreement
and this Agreement, the terms of the 1994 Plan shall control to the extent such
terms are not inconsistent with paragraph 2.7(a)(iii) of the Merger Agreement.
9. The Grantee, TCI and TCI/Liberty hereby declare and represent
that no promise or agreement not herein expressed has been made and that this
Agreement contains the entire agreement between the parties hereto with respect
to the options.
-2-
<PAGE> 4
IN WITNESS WHEREOF, Tele-Communications, Inc. and TCI
Communications, Inc. have caused this Agreement to be executed by their duly
authorized officers, and Grantee has hereunto set his hand, effective as of the
date first above written.
TELE-COMMUNICATIONS, INC.
By________________________________________
TCI COMMUNICATIONS, INC.
By________________________________________
GRANTEE
By________________________________________
-3-
<PAGE> 1
EXHIBIT 4.8
<PAGE> 2
ASSUMPTION
AND
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") entered into as of
________________________, 1994, by and between TCI COMMUNICATIONS, INC.
(formerly known as TELE-COMMUNICATIONS, INC.) ("TCI") and TELE-COMMUNICATIONS,
INC. (formerly known as TCI/LIBERTY HOLDING COMPANY) ("TCI/Liberty"), and
________________________________________ ("Employee").
W I T N E S S E T H:
WHEREAS, pursuant to the Non-Qualified Stock Option and Stock
Appreciation Rights Agreement dated October 12, 1993 (the "1993 Option
Agreement"), Employee has been granted by TCI an option to purchase an
aggregate of _______ shares of common stock of TCI ("Options") and a stock
appreciation right with respect to each Option (the "Tandem SARs") under the
Tele-Communications, Inc. 1992 Stock Incentive Plan (the "1992 Plan"); and
WHEREAS, Section 12(b) of the Option Agreement provides for
the assumption of the Option Agreement and to make such new awards, as nearly
as may be practicable, equivalent to the awards granted under the Option
Agreement; and
WHEREAS, the Merger Agreement, dated as of January 27, 1994 as
amended, among Tele-Communications, Inc., Liberty Media Corporation,
TCI/Liberty Holding Company, TCI Mergerco, Inc., and Liberty Mergerco, Inc.
(the "Merger Agreement") provides, among other things, that at the Effective
Time as specified in the Merger Agreement, each outstanding Option Share and
Tandem SAR shall be assumed by TCI/Liberty pursuant to Section 10.1(b) of the
Tele-Communications, Inc. 1994 Stock Incentive Plan (the "1994 Plan"); and
WHEREAS, in exchange for good and valuable consideration,
Employee desires to receive an award under the 1994 Plan, upon the assumption
of and in substitution for the Options and Tandem SARs granted under the 1993
Option Agreement pursuant to this Agreement under the 1994 Plan.
NOW, THEREFORE, Employee, TCI and TCI/Liberty agree as follows:
<PAGE> 3
1. Upon the Effective Time of the mergers pursuant to the Merger
Agreement, TCI/Liberty shall grant Employee an option to purchase an aggregate
number of shares of common stock of TCI/Liberty and a stock appreciation right
with respect to each option (an "Award") under the 1994 Plan upon the
assumption of, and in substitution for, the Options and Tandem SARs previously
granted under the 1993 Option Agreement and the 1992 Plan. The number of
shares and the exercise price of each share with respect to the Award under the
1994 Plan shall be determined in accordance with the Merger Agreement.
2. As of the Effective Time, Employee agrees to substitute the
Options and Tandem SARs granted pursuant to the 1993 Option Agreement for
Awards under the 1994 Plan.
3. To the extent practicable, the specific terms and conditions
of the Awards shall be subject to and governed by the provisions of the 1993
Option Agreement.
4. The Awards shall be exercisable in accordance with the
provisions of the 1993 Option Agreement.
5. The Awards which are in substitution for the Options and SARs
will be grants under the 1994 Plan.
6. Except as otherwise set forth herein, Employee's right to the
Awards shall be subject to and governed by the provisions of the 1993 Option
Agreement and the 1994 Plan.
7. The assumption of options under this Agreement shall be
contingent on the consummation of the transaction contemplated by the Merger
Agreement, and if the Merger Agreement is terminated prior to the Effective
Time, this Agreement will be void and of no effect.
8. Unless otherwise expressly stated herein, in the event of any
inconsistency between the terms of the 1994 Plan and the 1993 Option Agreement
and this Agreement, the terms of the 1994 Plan shall control to the extent such
terms are not inconsistent with paragraph 2.7(a)(iii) of the Merger Agreement.
9. The Employee, TCI and TCI/Liberty hereby declare and represent
that no promise or agreement not herein expressed has been made and that this
Agreement contains the entire agreement between the parties hereto with respect
to the options.
-2-
<PAGE> 4
IN WITNESS WHEREOF, Tele-Communications, Inc. and TCI
Communications, Inc. have caused this Agreement to be executed by their duly
authorized officers, and Employee has hereunto set his hand, effective as of
the date first above written.
TELE-COMMUNICATIONS, INC.
By______________________________________
TCI COMMUNICATIONS, INC.
By______________________________________
EMPLOYEE
By______________________________________
-3-
<PAGE> 1
EXHIBIT 4.9
<PAGE> 2
ASSUMPTION
AND
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") entered into as of
________________________, 1994, by and between TCI COMMUNICATIONS, INC.
(formerly known as TELE-COMMUNICATIONS, INC.) ("TCI") and TELE-COMMUNICATIONS,
INC. (formerly known as TCI/LIBERTY HOLDING COMPANY) ("TCI/Liberty"), and
________________________________________ ("Employee").
W I T N E S S E T H:
WHEREAS, pursuant to the Non-Qualified Stock Option and Stock
Appreciation Rights Agreement dated November 11, 1992 (the "1992 Option
Agreement"), Employee has been granted by TCI an option to purchase an
aggregate of _______ shares of common stock of TCI ("Options") and a stock
appreciation right with respect to each Option (the "Tandem SARs") under the
Tele-Communications, Inc. 1992 Stock Incentive Plan (the "1992 Plan"); and
WHEREAS, Section 12(b) of the Option Agreement provides for
the assumption of the Option Agreement and to make such new awards, as nearly
as may be practicable, equivalent to the awards granted under the Option
Agreement; and
WHEREAS, the Merger Agreement, dated as of January 27, 1994 as
amended, among Tele-Communications, Inc., Liberty Media Corporation,
TCI/Liberty Holding Company, TCI Mergerco, Inc., and Liberty Mergerco, Inc.
(the "Merger Agreement") provides, among other things, that at the Effective
Time as specified in the Merger Agreement, each outstanding Option Share and
Tandem SAR shall be assumed by TCI/Liberty pursuant to Section 10.1(b) of the
Tele-Communications, Inc. 1994 Stock Incentive Plan (the "1994 Plan"); and
WHEREAS, in exchange for good and valuable consideration,
Employee desires to receive an award under the 1994 Plan, upon the assumption
of and in substitution for the Options and Tandem SARs granted under the 1992
Option Agreement pursuant to this Agreement under the 1994 Plan.
NOW, THEREFORE, Employee, TCI and TCI/Liberty agree as follows:
<PAGE> 3
1. Upon the Effective Time of the mergers pursuant to the Merger
Agreement, TCI/Liberty shall grant Employee an option to purchase an aggregate
number of shares of common stock of TCI/Liberty and a stock appreciation right
with respect to each option (an "Award") under the 1994 Plan upon the
assumption of, and in substitution for, the Options and Tandem SARs previously
granted under the 1992 Option Agreement and the 1992 Plan. The number of
shares and the exercise price of each share with respect to the Award under the
1994 Plan shall be determined in accordance with the Merger Agreement.
2. As of the Effective Time, Employee agrees to substitute the
Options and Tandem SARs granted pursuant to the 1992 Option Agreement for
Awards under the 1994 Plan.
3. To the extent practicable, the specific terms and conditions
of the Awards shall be subject to and governed by the provisions of the 1992
Option Agreement.
4. The Awards shall be exercisable in accordance with the
provisions of the 1992 Option Agreement.
5. The Awards which are in substitution for the Options and SARs
will be grants under the 1994 Plan.
6. Except as otherwise set forth herein, Employee's right to the
Awards shall be subject to and governed by the provisions of the 1992 Option
Agreement and the 1994 Plan.
7. The assumption of options under this Agreement shall be
contingent on the consummation of the transaction contemplated by the Merger
Agreement, and if the Merger Agreement is terminated prior to the Effective
Time, this Agreement will be void and of no effect.
8. Unless otherwise expressly stated herein, in the event of any
inconsistency between the terms of the 1994 Plan and the 1992 Option Agreement
and this Agreement, the terms of the 1994 Plan shall control to the extent such
terms are not inconsistent with paragraph 2.7(a)(iii) of the Merger Agreement.
9. The Employee, TCI and TCI/Liberty hereby declare and represent
that no promise or agreement not herein expressed has been made and that this
Agreement contains the entire agreement between the parties hereto with respect
to the options.
-2-
<PAGE> 4
IN WITNESS WHEREOF, Tele-Communications, Inc. and TCI
Communications, Inc. have caused this Agreement to be executed by their duly
authorized officers, and Employee has hereunto set his hand, effective as of
the date first above written.
TELE-COMMUNICATIONS, INC.
By____________________________________
TCI COMMUNICATIONS, INC.
By____________________________________
EMPLOYEE
______________________________________
-3-
<PAGE> 1
EXHIBIT 4.10
<PAGE> 2
ASSUMPTION
AND
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") entered into as of
________________________, 1994, by and between TCI COMMUNICATIONS, INC.
(formerly known as TELE-COMMUNICATIONS, INC.) ("TCI") and TELE-COMMUNICATIONS,
INC. (formerly known as TCI/LIBERTY HOLDING COMPANY) ("TCI/Liberty"), and
________________________________________ ("Employee").
W I T N E S S E T H:
WHEREAS, pursuant to a letter dated November 1989 (the "1989
Agreement"), Employee has been granted by TCI an option to purchase an
aggregate of _______ shares of common stock of TCI which are intended to be
incentive stock options ("Incentive Stock Options") within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"),
under the Tele-Communications, Inc. 1982 Incentive Stock Option Plan (the
"1982 Plan"); and
WHEREAS, the Merger Agreement, dated as of January 27, 1994 as
amended, among Tele-Communications, Inc., Liberty Media Corporation,
TCI/Liberty Holding Company, TCI Mergerco, Inc., and Liberty Mergerco, Inc.
(the "Merger Agreement") provides, among other things, that at the Effective
Time as specified in the Merger Agreement, each outstanding Incentive Stock
Option shall be assumed by TCI/Liberty pursuant to Section 10.1(b) of the
Tele-Communications, Inc. 1994 Stock Incentive Plan (the "1994 Plan"); and
WHEREAS, in exchange for good and valuable consideration,
Employee desires to receive an award under the 1994 Plan, upon the assumption
of and in substitution for the Incentive Stock Options granted under the 1989
Agreement pursuant to this Agreement under the 1994 Plan.
<PAGE> 3
NOW, THEREFORE, Employee, TCI and TCI/Liberty agree as
follows:
1. Upon the Effective Time of the mergers pursuant to the Merger
Agreement, TCI/Liberty shall grant Employee an option to purchase an aggregate
number of shares of common stock of TCI/Liberty (an "Award") under the 1994
Plan upon the assumption of, and in substitution for, the Incentive Stock
Options previously granted under the 1989 Agreement and the 1982 Plan. The
number of shares and the exercise price of each share with respect to the Award
under the 1994 Plan shall be determined in accordance with the Merger
Agreement.
2. As of the Effective Time, Employee agrees to substitute the
Incentive Stock Options granted pursuant to the 1989 Agreement for Awards under
the 1994 Plan.
3. To the extent practicable, the specific terms and conditions
of the Awards shall be subject to and governed by the provisions of the 1982
Plan.
4. The Awards shall be exercisable in accordance with the
provisions of the 1989 Agreement.
5. The Awards which are in substitution for the Incentive Stock
Options will be grants under the 1994 Plan.
6. Except as otherwise set forth herein, Employee's right to the
Awards shall be subject to and governed by the provisions of the 1989 Agreement
and the 1982 Plan.
7. The assumption of options under this Agreement shall be
contingent on the consummation of the transaction contemplated by the Merger
Agreement, and if the Merger Agreement is terminated prior to the Effective
Time, this Agreement will be void and of no effect.
8. Unless otherwise expressly stated herein, in the event of any
inconsistency between the terms of the 1994 Plan and the 1989 Agreement and
this Agreement, the terms of the 1994 Plan shall control to the extent such
terms are not inconsistent with paragraph 2.7(a)(iii) of the Merger Agreement.
9. Notwithstanding anything in the Agreement to the contrary, the
assumption of the Incentive Stock Options shall be accomplished hereunder in a
manner that shall, in all respects, comply with the requirements of the Code,
including any requirement that the assumption of any Incentive Stock Option
shall not give the Employee any additional benefits that Employer did not have
prior to such assumption, and that TCI/Liberty may make any changes that it
deems necessary or desirable with respect to the assumption hereunder to
satisfy the requirements of the Code.
-2-
<PAGE> 4
10. The Employee, TCI and TCI/Liberty hereby declare and represent
that no promise or agreement not herein expressed has been made and that this
Agreement contains the entire agreement between the parties hereto with respect
to the options.
IN WITNESS WHEREOF, Tele-Communications, Inc. and TCI
Communications, Inc. have caused this Agreement to be executed by their duly
authorized officers, and Employee has hereunto set his hand, effective as of
the date first above written.
TELE-COMMUNICATIONS, INC.
By___________________________________
TCI COMMUNICATIONS, INC.
By____________________________________
EMPLOYEE
By____________________________________
-3-
<PAGE> 1
EXHIBIT 4.11
<PAGE> 2
ASSUMPTION
AND
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") entered into as of
________________________, 1994, by and between TCI COMMUNICATIONS, INC.
(formerly known as TELE-COMMUNICATIONS, INC.) ("TCI") and TELE-COMMUNICATIONS,
INC. (formerly known as TCI/LIBERTY HOLDING COMPANY) ("TCI/Liberty"), and
________________________________________ ("Employee").
W I T N E S S E T H:
WHEREAS, pursuant to the Agreement and Plan of Merger dated
June 6, 1991, between United Artists Entertainment Company ("UAE") and TCI (the
"1991 Merger Agreement"), whereby TCI assumed various outstanding options which
had been granted under stock incentive plans maintained by UAE; and
WHEREAS, pursuant to the terms of and in accordance with the
1991 Merger Agreement, Employee had been granted by TCI an option to purchase
an aggregate of _______ shares of common stock of TCI ("Options"); and
WHEREAS, the Merger Agreement, dated as of January 27, 1994 as
amended, among Tele-Communications, Inc., Liberty Media Corporation,
TCI/Liberty Holding Company, TCI Mergerco, Inc., and Liberty Mergerco, Inc.
(the "Merger Agreement") provides, among other things, that at the Effective
Time as specified in the Merger Agreement, each outstanding Option shall be
assumed by TCI/Liberty pursuant to Section 10.1(b) of the Tele-Communications,
Inc. 1994 Stock Incentive Plan (the "1994 Plan"); and
WHEREAS, in exchange for good and valuable consideration,
Employee desires to receive an award under the 1994 Plan, upon the assumption
of and in substitution for the Options granted under the 1991 Merger Agreement
pursuant to this Agreement under the 1994 Plan.
<PAGE> 3
NOW, THEREFORE, Employee, TCI and TCI/Liberty agree as
follows:
1. Upon the Effective Time of the mergers pursuant to the Merger
Agreement, TCI/Liberty shall grant Employee an option to purchase an aggregate
number of shares of common stock of TCI/Liberty (an "Award") under the 1994
Plan upon the assumption of, and in substitution for, the Options previously
granted under the 1991 Merger Agreement. The number of shares and the exercise
price of each share with respect to the Award under the 1994 Plan shall be
determined in accordance with the Merger Agreement.
2. As of the Effective Time, Employee agrees to substitute the
Options granted pursuant to the 1991 Merger Agreement for Awards under the 1994
Plan.
3. To the extent practicable, the specific terms and conditions
of the Awards shall be subject to and governed by the provisions of the 1991
Merger Agreement.
4. The Awards shall be exercisable in accordance with the
provisions of the 1991 Merger Agreement.
5. The Awards which are in substitution for the Options will be
grants under the 1994 Plan.
6. Except as otherwise set forth herein, Employee's right to the
Awards shall be subject to and governed by the provisions of the 1991 Merger
Agreement and the 1994 Plan.
7. The assumption of options under this Agreement shall be
contingent on the consummation of the transaction contemplated by the Merger
Agreement, and if the Merger Agreement is terminated prior to the Effective
Time, this Agreement will be void and of no effect.
8. Unless otherwise expressly stated herein, in the event of any
inconsistency between the terms of the 1994 Plan and the 1991 Merger Agreement
and this Agreement, the terms of the 1994 Plan shall control to the extent such
terms are not inconsistent with paragraph 2.7(a)(iii) of the Merger Agreement.
9. The Employee, TCI and TCI/Liberty hereby declare and represent
that no promise or agreement not herein expressed has been made and that this
Agreement contains the entire agreement between the parties hereto with respect
to the options.
-2-
<PAGE> 4
IN WITNESS WHEREOF, Tele-Communications, Inc. and TCI
Communications, Inc. have caused this Agreement to be executed by their duly
authorized officers, and Employee has hereunto set his hand, effective as of
the date first above written.
TELE-COMMUNICATIONS, INC.
By____________________________________
TCI COMMUNICATIONS, INC.
By____________________________________
EMPLOYEE
By____________________________________
-3-
<PAGE> 1
EXHIBIT 4.12
<PAGE> 2
September 17, 1991
Dear _______________:
This letter sets forth the terms and conditions of a grant by
the Board of Directors of Liberty Media Corporation of a stock appreciation
right.
1. Stock Appreciation Rights.
a) You are hereby granted Stock Appreciation Rights
("SARs") with respect to _________ shares of the Company's Class A Common
Stock, $1.00 par value per share ("Common Stock"). The SARs granted hereunder
shall vest over a seven-year period. SARs with respect to _______ shares of
Common Stock shall vest, and become exercisable, by you at the beginning of
each employment year during the term of this Agreement, commencing with the
employment year beginning March 28, 1991, such that SARs with respect to all
_________ shares of Common Stock will be fully vested on March 28, 1997. The
SARs granted to you hereunder are not granted under, and are not subject to the
provisions of, the Company's 1991 Stock Incentive Plan.
b) SARs granted hereunder may be exercised, in whole or
in part and at any time or from time to time, during the period commencing with
the vesting of such SARs and ending on March 28, 2001, unless earlier
terminated in accordance with Section 1(c). SARs may be exercised by delivery
to the Company of a written notice specifying the whole number of shares of
Common Stock as to which SARs are being exercised. Upon the valid exercise of
SARs, Executive shall be entitled to receive from the Company cash or stock
equal to the excess of (i) the Fair Market Value (as hereinafter defined) of
such share of Common Stock with respect to which such SARs have been exercised
over (ii) $___ per share (the "Strike Price").
c) Upon termination of your employment by the Board of
Directors, all SARs that have theretofore vested and not been exercised shall
remain exercisable for a period of one year after the date of such termination,
and shall thereafter terminate to the extent not exercised provided that no SAR
may be exercised after March 28, 2001. If you should die or become disabled
while employed or while entitled to exercise vested SARs, all SARs that have
theretofore vested shall remain exercisable by you or your designated
beneficiary or beneficiaries for a period of one year after the date of your
death or disability and notice of such expiration to you, your
<PAGE> 3
designated beneficiary, if any, or your executor as the case may be, and shall
thereafter terminate to the extent not exercised.
d) The Fair Market Value of a share of Common Stock
shall be determined on the date of exercise of an SAR, and the date of exercise
of such SAR shall mean the date on which the Company shall have received
written notice from Executive of the exercise of such SAR. The "Fair Market
Value" of a share of Common Stock on any date shall be the "referenced price"
of such share, determined for the trading day preceding such date. The
"reference price" of a share of Common Stock shall be (i) the closing price of
a share of Common Stock for such trading day on the principal exchange on which
the Common Stock is listed, or (ii) if the Common Stock is not listed on any
national securities exchange, the closing price (or if none, the average of the
high and low bid prices) of a share of Common Stock on such trading day in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") or, should prices of the
Common Stock not be reported by NASDAQ, as reported by the National Quotation
Bureau Incorporation. If the reference price is not determinable by any of the
foregoing means, the Fair Market Value of a share of Common Stock on any date
shall equal the amount as is determined in good faith by the Board of
Directors.
e) In the event of a stock dividend, recapitalization,
reorganization, split-up, spin-off, combination, exchange of shares, warrants
or rights offering to purchase Common Stock, or other similar corporate event
affects the Common Stock such that an adjustment is required in order to
preserve the benefits of this Section 1, an adjustment shall be made to
increase or decrease any or all of (i) the number and kind of shares subject to
the SARs granted hereunder and/or (ii) the Strike Price in such manner as the
Board of Directors may deem reasonable or appropriate, provided, however, that
the number of shares subject to the SARs granted hereunder shall always be a
whole number.
f) The grant of SARs hereunder shall not affect in any
way the right or power of the Company to make reclassifications,
reorganizations or other changes of or to its capital or business structure or
to merge, consolidate, liquidate, sell or otherwise dispose of all or any part
of its business or assets. However, if such shall result in a change of
control of the Company, your SARs shall immediately vest. Change of Control
shall mean an event following which the Company is no longer controlled
directly or indirectly by Tele-Communications, Inc. (or its successors), Bob
Magness or John C. Malone (or their heirs).
g) The amount of cash payable at any time by the Company
upon the valid exercise of SARs granted hereunder shall not in any way be
reserved or held in trust by the Company. You shall not have any rights
against the Company in respect of payment of such amount of cash other than the
rights of an unsecured general creditor of the Company. The amount of cash
payable upon the valid exercise of SARs hereunder shall not be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and shall not in any manner be liable or subject to the
debts, contracts, liabilities, engagements or torts of Executive or of any
designated beneficiary or personal representative.
2
<PAGE> 4
h) The SARs granted to you hereunder are not
transferable, except to a designated beneficiary or beneficiaries upon your
death, and may only be exercised by you during your lifetime. Without limiting
the generality of the foregoing and except as provided therein, the SARs
granted hereunder may not be assigned, transferred, pledged or hypothecated in
any way (whether by operation of law or otherwise) and are not subject to
execution attachment or similar process. Except as provided herein, any
attempted assignment, transfer, pledge or hypothecation of, or levy, attachment
or similar process upon, any SARs shall be null and void and without force or
effect.
2. Notices.
All notices to be given hereunder shall be deemed duly given
when delivered personally in writing or five days after mailed, certified mail,
return receipt requested, postage prepaid and addressed as follows:
a) If to be given to the Company:
Liberty Media Corporation
2232 Dell Range Blvd., #305
Cheyenne, WY 82009
b) If to be given to you:
_______________________
_______________________
_______________________
or to any such address as either of the parties may furnish to the
other in writing in accordance with this Section 2, except that notices of
change of address shall not be deemed given until received.
3. Nonassignment.
Neither party hereto may assign any rights hereunder without
the other party's prior written consent. The foregoing notwithstanding,
however, upon the sale of all or substantially all the assets of the Company,
or upon the merger or consolidation of the Company
3
<PAGE> 5
with another corporation in which the Company is not the surviving corporation,
this Agreement shall bind and inure to the benefit of both you and the
acquiring or surviving corporation, as the case may be.
Very truly yours,
LIBERTY MEDIA CORPORATION
By:______________________
John C. Malone
Chairman
4
<PAGE> 1
EXHIBIT 4.13
<PAGE> 2
July 26, 1993
Dear _____:
I am pleased to inform you that on June 3, 1993, pursuant to
the terms of the Liberty Media Corporation 1991 Stock Incentive Plan (the
"Plan"), a copy of which is attached, you were granted nonqualified stock
options to purchase ________ shares of Liberty Media Class A Common Stock at
$________ per share (85% of the Fair Market Value [as defined in the Plan] on
the date of grant). You have also been granted Stock Appreciation Rights
("SARs") with respect to such options. These SARs may only be exercised upon
surrender of the related options.
Your options and SARs vest and become exercisable in five
equal annual installments commencing June 3, 1994, and expire on June 3, 2003.
Nonqualified options and SARs are generally taxable as ordinary income upon
exercise; however, you should consult your own tax advisor regarding the tax
consequences of the above grant to you. For other information concerning your
options, please refer to the Plan.
Sincerely,
Peter R. Barton
President
Enclosure
-1-
<PAGE> 1
EXHIBIT 4.14
<PAGE> 2
1993 GRANT
TELE-COMMUNICATIONS, INC.
1992 STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION
AND STOCK APPRECIATION RIGHTS AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the _____ day of
_________, 1993 (the "Grant Date"), by and between TELE-COMMUNICATIONS, INC.,
a Delaware corporation (the "Company"), and the person signing adjacent to
the caption "Grantee" on the signature page hereof (the "Grantee").
The Company has adopted the Tele-Communications, Inc. 1992
Stock Incentive Plan (the "Plan"), a copy of which is appended to this
Agreement as Exhibit A and by this reference made a part hereof, for the
benefit of eligible employees of the Company and its Subsidiaries. Capitalized
terms used and not otherwise defined herein shall have the meaning ascribed
thereto in the Plan.
Pursuant to the Plan, the Compensation Committee of the Board
(the "Committee"), which has been assigned responsibility for administering the
Plan, has determined that it would be in the interest of the Company and its
stockholders to grant the options and rights provided herein in order to
provide Grantee with additional remuneration for services rendered, to
encourage Grantee to remain in the employ of the Company or its Subsidiaries
and to increase Grantee's personal interest in the continued success and
progress of the Company.
The Company and Grantee therefore agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions
herein, the Company grants to the Grantee, during the period commencing on the
Grant Date and expiring at 5:00 p.m., Denver, Colorado time ("Close of
Business"), on the day which immediately precedes the tenth anniversary of the
Grant Date (the "Option Term"), subject to earlier termination as provided in
paragraphs 8 and 12(b) below, an option to purchase from the Company, at the
price per share set forth on Schedule 1 hereto (the "Option Price"), the number
of shares of Common Stock set forth on said Schedule 1 (the "Option Shares").
The Option Price and Option Shares are subject to adjustment pursuant to
paragraph 12 below. This option is designated as a "Nonqualified Stock Option"
in accordance with the Plan and is hereinafter referred to as the "Option."
2. GRANT OF STOCK APPRECIATION RIGHTS. Subject to the
terms and conditions herein and in tandem with the Option, the Company grants
to Grantee for the
-1-
<PAGE> 3
Option Term, subject to earlier termination as provided in paragraphs 8 and
12(b) below, a stock appreciation right with respect to each Option Share
(individually, a "Tandem SAR" and collectively, the "Tandem SARs"). Upon
exercise of a Tandem SAR in accordance with this Agreement, the Company shall,
subject to paragraph 6 below, make payment as follows:
(i) the amount of payment shall equal the amount by which
the Fair Market Value of the Option Share on the date of exercise of
the Tandem SAR exceeds the Option Price; and
(ii) payment of the amount determined in accordance with
clause (i) shall be made in shares of Common Stock (valued at their
Fair Market Value as of the date of exercise of such Tandem SAR), or,
in the sole discretion of the Committee, in cash, or partly in cash
and partly in shares of Common Stock.
3. REDUCTION UPON EXERCISE. The exercise of any number
of Tandem SARs shall cause a corresponding reduction in the number of Option
Shares which shall apply against the Option Shares then available for purchase.
The exercise of the Option to purchase any number of Option Shares shall cause
a corresponding reduction in the number of Tandem SARs.
4. CONDITIONS OF EXERCISE. The Option and Tandem SARs
are exercisable only in accordance with the conditions stated in this
paragraph.
(a) Except as otherwise provided in paragraph 12(b) below
or in the last sentence of this subparagraph (a), the Option shall not be
exercisable until the first anniversary of the Grant Date, and on such first
anniversary and thereafter the Option may only be exercised to the extent the
Option Shares have become available for purchase in accordance with the
following schedule:
<TABLE>
<CAPTION>
Anniversary of Percentage of Option Shares
Grant Date Available for Purchase
-------------- ----------------------------
<S> <C>
1st 25%
2nd 50%
3rd 75%
4th 100%
</TABLE>
Notwithstanding the foregoing, all Option Shares shall become available for
purchase if Grantee's employment with the Company and its Subsidiaries (i)
shall terminate by reason of (x) termination by the Company without cause (as
defined in Section 10.2(b) of the Plan), (y) termination by Grantee for good
reason (as defined herein) or (z) Disability, (ii) shall terminate pursuant to
provisions of a written employment agreement, if any, between the Grantee and
the Company which expressly permit the Grantee to terminate such employment
-2-
<PAGE> 4
upon the occurrence of specified events (other than the giving of notice and
passage of time), or (iii) if Grantee dies while employed by the Company or a
Subsidiary.
(b) A Tandem SAR with respect to an Option Share shall be
exercisable only if the Option Share is then available for purchase in
accordance with subparagraph (a).
(c) To the extent the Option or Tandem SARs become
exercisable, such Option or Tandem SARs may be exercised in whole or in part
(at any time or from time to time, except as otherwise provided herein) until
expiration of the Option Term or earlier termination thereof.
(d) Grantee acknowledges and agrees that the Committee
may, in its discretion and as contemplated by Section 7.5 of the Plan, adopt
rules and regulations from time to time after the date hereof with respect to
the exercise of SARs and that the exercise by Grantee of the Tandem SARs will
be subject to the further condition that such exercise is made in accordance
with all such rules and regulations as the Committee may determine are
applicable thereto.
5. MANNER OF EXERCISE. The Option or a Tandem SAR shall
be considered exercised (as to the number of Option Shares or Tandem SARs
specified in the notice referred to in subparagraph (a) below) on the latest of
(i) the date of exercise designated in the written notice referred to in
subparagraph (a) below, (ii) if the date so designated is not a business day,
the first business day following such date or (iii) the earliest business day
by which the Company has received all of the following:
(a) Written notice, in such form as the Committee may
require, designating, among other things, the date of exercise, the number of
Option Shares to be purchased and/or the number of Tandem SARs to be exercised;
(b) If the Option is to be exercised, payment of the
Option Price for each Option Share to be purchased in cash or in such other
form, or combination of forms, of payment contemplated by Section 6.6(a) of the
Plan as the Committee may permit; PROVIDED, HOWEVER, that any shares of Common
Stock or Class B Stock delivered in payment of the Option Price, if such form
of payment is so permitted by the Committee, shall be shares that the Grantee
has owned for a period of at least six months prior to the date of exercise,
and PROVIDED, FURTHER, that, notwithstanding clause (v) of Section 6.6(a) of
the Plan, Option Shares may not be withheld in payment or partial payment of
the Option Price; and
(c) Any other documentation that the Committee may
reasonably require.
Notwithstanding the foregoing, if in order to meet the
exemptive requirements of Rule 16b-3, the Grantee exercises Tandem SARs during
a quarterly window period determined in accordance with paragraph (e)(3) of
such Rule (including by designating in a written notice of exercise delivered
prior thereto that such exercise is to be effective during
-3-
<PAGE> 5
such window period), then the date of exercise of such Tandem SARs shall be
deemed for purposes of this paragraph 5 and for purposes of the Fair Market
Value determinations to be made pursuant to paragraph 2 hereof, to be the day
during such window period on which the highest reported last sale price of a
share of Common Stock as reported on NASDAQ occurred and the Fair Market Value
of such share shall be deemed to be such highest reported last sale price.
6. MANDATORY WITHHOLDING FOR TAXES. Grantee
acknowledges and agrees that the Company shall deduct from the cash and/or
shares of Common Stock otherwise payable or deliverable upon exercise of the
Option or a Tandem SAR an amount of cash and/or number of shares of Common
Stock (valued at their Fair Market Value on the date of exercise) that is equal
to the amount of all federal, state and local taxes required to be withheld by
the Company upon such exercise, as determined by the Committee.
7. DELIVERY BY THE COMPANY. As soon as practicable
after receipt of all items referred to in paragraph 5, and subject to the
withholding referred to in paragraph 6, the Company shall deliver to the
Grantee certificates issued in Grantee's name for the number of Option Shares
purchased by exercise of the Option and for the number of shares of Common
Stock to which the Grantee is entitled by the exercise of Tandem SARs and any
cash payment to which the Grantee is entitled by the exercise of Tandem SARs.
If delivery is by mail, delivery of shares of Common Stock shall be deemed
effected for all purposes when a stock transfer agent of the Company shall have
deposited the certificates in the United States mail, addressed to the Grantee,
and any cash payment shall be deemed effected when a Company check, payable to
Grantee and in an amount equal to the amount of the cash payment, shall have
been deposited in the United States mail, addressed to the Grantee.
8. EARLY TERMINATION OF OPTION AND TANDEM SARS. Unless
otherwise determined by the Committee in its sole discretion, the Option and
Tandem SARs shall terminate, prior to the expiration of the Option Term, at the
time specified below:
(a) If Grantee's employment with the Company and its
Subsidiaries terminates (i) other than (x) by the Company for "cause" (as
defined in Section 10.2(b) of the Plan), (y) by the Grantee with "good reason"
(as defined herein) or (z) by the Company without cause, and (ii) other than
(x) by reason of death or Disability, (y) with the written consent of the
Company or the applicable Subsidiary or (z) without such consent if such
termination is pursuant to provisions of a written employment agreement, if
any, between the Grantee and the Company which expressly permit the Grantee to
terminate such employment upon the occurrence of specified events (other than
the giving of notice and passage of time), then the Option and all Tandem SARs
shall terminate at the Close of Business on the first business day following
the expiration of the 90-day period which began on the date of termination of
Grantee's employment;
(b) If Grantee dies while employed by the Company or a
Subsidiary, or prior to the expiration of a period of time following
termination of Grantee's employment during
-4-
<PAGE> 6
which the Option and Tandem SARs remain exercisable as provided in paragraph
(a), the Option and all Tandem SARs shall terminate at the Close of Business on
the first business day following the expiration of the one-year period which
began on the date of death;
(c) If Grantee's employment with the Company terminates
by reason of Disability, then the Option and all Tandem SARs shall terminate at
the Close of Business on the first business day following the expiration of the
one-year period which began on the date of termination of Grantee's employment;
(d) If Grantee's employment with the Company and its
Subsidiaries is terminated by the Company for "cause" (as defined in Section
10.2(b) of the Plan), then the Option and all Tandem SARs shall terminate
immediately upon such termination of Grantee's employment; or
(e) If Grantee's employment (i) is terminated by Grantee
(x) with "good reason" (as defined herein), (y) with the written consent of the
Company or the applicable Subsidiary or (z) pursuant to provisions of a written
employment agreement, if any, between the Grantee and the Company which
expressly permit the Grantee to terminate such employment upon the occurrence
of specified events (other than the giving of notice and passage of time), or
(ii) by the Company without "cause" (as defined in Section 10.2(b) of the
Plan), then the Option Term shall terminate early only as provided for in
paragraph 8(b) or 12(b) below.
In any event in which the Option and Tandem SARs remain
exercisable for a period of time following the date of termination of Grantee's
employment as provided above, the Option and Tandem SARs may be exercised
during such period of time only to the extent the same were exercisable as
provided in paragraph 4 above on such date of termination of Grantee's
employment. A change of employment is not a termination of employment within
the meaning of this paragraph 8 provided that, after giving effect to such
change, the Grantee continues to be an employee of the Company or any
Subsidiary. Notwithstanding any period of time referenced in this paragraph 8
or any other provision of this paragraph that may be construed to the contrary,
the Option and all Tandem SARs shall in any event terminate upon the expiration
of the Option Term.
"Good reason" for purposes of the Agreement shall be deemed to
have occurred upon the happening of any of the following:
(i) any reduction in Grantee's annual rate of salary;
(ii) either (x) a failure of the Company to continue in
effect any employee benefit plan in which Grantee was participating or
(y) the taking of any action by the Company that would adversely
affect Grantee's participation in, or materially reduce Grantee's
benefits under, any such employee benefit
-5-
<PAGE> 7
plan, unless such failure or such taking of any action, adversely
affects the senior members of the corporate management of the Company
generally;
(iii) the assignment to Grantee of duties and
responsibilities that are materially more oppressive or onerous than
those attendant to Grantee's position immediately after the date
hereof;
(iv) the relocation of the office location as assigned to
Grantee by the Company to a location more than 20 miles from Grantee's
current location without Grantee's consent; or
(v) the failure of the Company to obtain, prior to the
time of any reorganization, merger, consolidation, disposition of all
or substantially all of the assets of the Company or similar
transaction effective after the date hereof, in which the Company is
not the surviving person, the unconditional assumption in writing or
by operation of law of the Company's obligations to Grantee under this
Agreement by each direct successor to the Company in any such
transaction.
9. AUTOMATIC EXERCISE OF TANDEM SARS. Immediately prior
to the termination of the Option, as provided in paragraph 8 above, or the
expiration of the Option Term, all remaining Tandem SARs shall be deemed to
have been exercised by the Grantee.
10. NONTRANSFERABILITY OF OPTION AND TANDEM SARS. During
Grantee's lifetime, the Option and Tandem SARs are not transferable
(voluntarily or involuntarily) other than pursuant to a qualified domestic
relations order and, except as otherwise required pursuant to a qualified
domestic relations order, are exercisable only by the Grantee or Grantee's
court appointed legal representative. The Grantee may designate a beneficiary
or beneficiaries to whom the Option and Tandem SARs shall pass upon Grantee's
death and may change such designation from time to time by filing a written
designation of beneficiary or beneficiaries with the Committee on the form
annexed hereto as Exhibit B or such other form as may be prescribed by the
Committee, PROVIDED that no such designation shall be effective unless so filed
prior to the death of Grantee. If no such designation is made or if the
designated beneficiary does not survive the Grantee's death, the Option and
Tandem SARs shall pass by will or the laws of descent and distribution.
Following Grantee's death, the Option and any Tandem SARs, if otherwise
exercisable, may be exercised by the person to whom such option or right passes
accordingly to the foregoing and such person shall be deemed the Grantee for
purposes of any applicable provisions of this Agreement.
11. NO SHAREHOLDER RIGHTS. The Grantee shall not be
deemed for any purpose to be, or to have any of the rights of, a stockholder of
the Company with respect to any shares of Common Stock as to which this
Agreement relates until such shares shall have been issued to Grantee by the
Company. Furthermore, the existence of this Agreement shall not affect in any
way the right or power of the Company or its stockholders to accomplish any
corporate act, including, without limitation, the acts referred to in Section
10.18 of the Plan.
-6-
<PAGE> 8
12. ADJUSTMENTS.
(a) The Option and Tandem SARs shall be subject to
adjustment (including, without limitation, as to the number of Option Shares
and the Option Price per share) in the sole discretion of the Committee and in
such manner as the Committee may deem equitable and appropriate in connection
with the occurrence of any of the events described in Section 4.2 of the Plan
following the Grant Date.
(b) In the event of any Approved Transaction, Board
Change or Control Purchase, the Option and all Tandem SARs shall become
exercisable in full without regard to paragraph 4(a); PROVIDED, HOWEVER, that
to the extent not theretofore exercised the Option and all Tandem SARs shall
terminate upon the first to occur of the consummation of the Approved
Transaction, the expiration of the Option Term or the earlier termination of
the Option and Tandem SARs pursuant to paragraph 8 hereof. Notwithstanding the
foregoing, the Committee may, in its discretion, determine that the Option and
Tandem SARs will not become exercisable on an accelerated basis in connection
with an Approved Transaction and/or will not terminate if not exercised prior
to consummation of the Approved Transaction, if the Board or the surviving or
acquiring corporation, as the case may be, shall have taken or made effective
provision for the taking of such action as in the opinion of the Committee is
equitable and appropriate to substitute a new Award for the Award evidenced by
this Agreement or to assume this Agreement and the Award evidenced hereby and
in order to make such new or assumed Award, as nearly as may be practicable,
equivalent to the Award evidenced by this Agreement as then in effect (but
before giving effect to any acceleration of the exercisability hereof unless
otherwise determined by the Committee), taking into account, to the extent
applicable, the kind and amount of securities, cash or other assets into or for
which the Common Stock may be changed, converted or exchanged in connection
with the Approved Transaction.
13. RESTRICTIONS IMPOSED BY LAW. Without limiting the
generality of Section 10.9 of the Plan, the Grantee agrees that Grantee will
not exercise the Option or any Tandem SAR and that the Company will not be
obligated to deliver any shares of Common Stock or make any cash payment, if
counsel to the Company determines that such exercise, delivery or payment would
violate any applicable law or any rule or regulation of any governmental
authority or any rule or regulation of, or agreement of the Company with, any
securities exchange or association upon which the Common Stock is listed or
quoted. Except as provided in Section 10.9 of the Plan, the Company shall in
no event be obligated to take any affirmative action in order to cause the
exercise of the Option or any Tandem SAR or the resulting delivery of shares of
Common Stock or other payment to comply with any such law, rule, regulation or
agreement.
14. NOTICE. Unless the Company notifies the Grantee in
writing of a different procedure, any notice or other communication to the
Company with respect to this Agreement shall be in writing and shall be:
-7-
<PAGE> 9
(i) delivered personally to the following address:
Tele-Communications, Inc.
5619 DTC Parkway
Englewood, Colorado 80111-3000
and conspicuously marked "Tele-Communications, Inc.
1992 Stock Incentive Plan, c/o General Counsel"; or
(ii) sent by first class mail, postage prepaid, and
addressed as follows:
Tele-Communications, Inc. 1992
Stock Incentive Plan
c/o General Counsel, Tele-Communications, Inc.
P. O. Box 5630
Denver, Colorado 80217
Any notice or other communication to the Grantee with respect to this Agreement
shall be in writing and shall be delivered personally, or shall be sent by
first class mail, postage prepaid, to Grantee's address as listed in the
records of the Company or the employing Subsidiary on the Grant Date, unless
the Company has received written notification from the Grantee of a change of
address.
15. AMENDMENT. Notwithstanding any other provisions
hereof, this Agreement may be supplemented or amended from time to time as
approved by the Committee as contemplated by Section 10.8(b) of the Plan.
Without limiting the generality of the foregoing, without the consent of the
Grantee,
(a) this Agreement may be amended or supplemented (i) to
cure any ambiguity or to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein, or (ii) to add to
the covenants and agreements of the Company for the benefit of Grantee or
surrender any right or power reserved to or conferred upon the Company in this
Agreement, SUBJECT, HOWEVER, to any required approval of the Company's
stockholders and, PROVIDED, in each case, that such changes or corrections
shall not adversely affect the rights of Grantee with respect to the Award
evidenced hereby, or (iii) to make such other changes as the Company, upon
advice of counsel, determines are necessary or advisable because of the
adoption or promulgation of, or change in or of the interpretation of, any law
or governmental rule or regulation, including any applicable federal or state
securities laws; and
(b) subject to Section 10.8(b) of the Plan and any
required approval of the Company's stockholders, the Award evidenced by this
Agreement may be cancelled by the Committee and a new Award made in
substitution therefor, PROVIDED that the Award so substituted shall satisfy all
of the requirements of the Plan as of the date such new Award is
-8-
<PAGE> 10
made and no such action shall adversely affect the Option or any Tandem SAR to
the extent then exercisable.
16. GRANTEE EMPLOYMENT. Nothing contained in this
Agreement, and no action of the Company or the Committee with respect hereto,
shall confer or be construed to confer on the Grantee any right to continue in
the employ of the Company or any of its Subsidiaries or interfere in any way
with the right of the Company or any employing Subsidiary to terminate the
Grantee's employment at any time, with or without cause; SUBJECT, HOWEVER, to
the provisions of any employment agreement between the Grantee and the Company
or any Subsidiary.
17. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of Colorado.
18. CONSTRUCTION. References in this Agreement to "this
Agreement" and the words "herein," "hereof," "hereunder" and similar terms
include all Exhibits and Schedules appended hereto, including the Plan. This
Agreement is entered into, and the Award evidenced hereby is granted, pursuant
to the Plan and shall be governed by and construed in accordance with the Plan
and the administrative interpretations adopted by the Committee thereunder.
All decisions of the Committee upon questions regarding the Plan or this
Agreement shall be conclusive. Unless otherwise expressly stated herein, in
the event of any inconsistency between the terms of the Plan and this
Agreement, the terms of the Plan shall control. The headings of the paragraphs
of this Agreement have been included for convenience of reference only, are not
to be considered a part hereof and shall in no way modify or restrict any of
the terms or provisions hereof.
19. DUPLICATE ORIGINALS. The Company and the Grantee may
sign any number of copies of this Agreement. Each signed copy shall be an
original, but all of them together represent the same agreement.
20. RULES BY COMMITTEE. The rights of the Grantee and
obligations of the Company hereunder shall be subject to such reasonable rules
and regulations as the Committee may, subject to the express provisions of the
Plan, adopt from time to time hereafter.
-9-
<PAGE> 11
21. GRANTEE ACCEPTANCE. Grantee shall signify acceptance
of the terms and conditions of this Agreement by signing in the space provided
below and returning a signed copy to the Company.
ATTEST: TELE-COMMUNICATIONS, INC.
_________________________ By: _________________________
Assistant Secretary Name:
Title:
ACCEPTED:
_________________________
Grantee
-10-
<PAGE> 12
Schedule 1 to Non-Qualified Stock
Option and Stock Appreciation
Rights Agreement dated as of
___________, 1993
TELE-COMMUNICATIONS, INC. 1992 STOCK INCENTIVE PLAN
Grantee:
Grant Date: ____________, 1993
Option Price: $______ per share
Option Shares: __________ shares of the Company's Class A
Common Stock, $1.00 par value per share
-11-
<PAGE> 13
Exhibit B to Non-Qualified
Stock Option and Stock
Appreciation Rights Agreement
dated as of _________ , 1993
TELE-COMMUNICATIONS, INC. 1992 STOCK INCENTIVE PLAN
DESIGNATION OF BENEFICIARY
I, ___________________________________________ (the "Grantee"), hereby
declare that upon my death __________________________________________ (the
Name
"Beneficiary") of _____________________________________________________________,
Street Address City State Zip Code
who is my _________________________________________, shall be entitled to the
Relationship to Grantee
Option, Tandem SARs and all other rights accorded the Grantee by the
above-referenced grant agreement (the "Agreement").
It is understood that this Designation of Beneficiary is made pursuant
to the Agreement and is subject to the conditions stated herein, including the
Beneficiary's survival of the Grantee's death. If any such condition is not
satisfied, such rights shall devolve according to the Grantee's will or the
laws of descent and distribution.
It is further understood that all prior designations of beneficiary
under the Agreement are hereby revoked and that this Designation of Beneficiary
may only be revoked in writing, signed by the Grantee, and filed with the
Company prior to the Grantee's death.
___________________ __________________________________________
Date Grantee
<PAGE> 1
EXHIBIT 4.15
<PAGE> 2
1992 GRANT
TELE-COMMUNICATIONS, INC.
1992 STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION
AND STOCK APPRECIATION RIGHTS AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 11th day of
November, 1992 (the "Grant Date"), by and between TELE-COMMUNICATIONS, INC., a
Delaware corporation (the "Company"), and the person signing adjacent to the
caption "Grantee" on the signature page hereof (the "Grantee").
The Company has adopted the Tele-Communications, Inc. 1992
Stock Incentive Plan (the "Plan"), a copy of which is appended to this
Agreement as Exhibit A and by this reference made a part hereof, for the
benefit of eligible employees of the Company and its Subsidiaries. Capitalized
terms used and not otherwise defined herein shall have the meaning ascribed
thereto in the Plan.
Pursuant to the Plan, the Compensation Committee of the Board
(the "Committee"), which has been assigned responsibility for administering the
Plan, has determined that it would be in the interest of the Company and its
stockholders to grant the options and rights provided herein in order to
provide Grantee with additional remuneration for services rendered, to
encourage Grantee to remain in the employ of the Company or its Subsidiaries
and to increase Grantee's personal interest in the continued success and
progress of the Company.
The Company and Grantee therefore agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions
herein, the Company grants to the Grantee, during the period commencing on the
Grant Date and expiring at 5:00 p.m., Denver, Colorado time ("Close of
Business"), on the day which immediately precedes the tenth anniversary of the
Grant Date (the "Option Term"), subject to earlier termination as provided in
paragraphs 8 and 12(b) below, an option to purchase from the Company, at the
price per share set forth on Schedule 1 hereto (the "Option Price"), the number
of shares of Common Stock set forth on said Schedule 1 (the "Option Shares").
The Option Price and Option Shares are subject to adjustment pursuant to
paragraph 12 below. This option is designated as a "Nonqualified Stock Option"
in accordance with the Plan and is hereinafter referred to as the "Option."
2. GRANT OF STOCK APPRECIATION RIGHTS. Subject to the
terms and conditions herein and in tandem with the Option, the Company grants
to Grantee for the Option Term, subject to earlier termination as provided in
paragraphs 8 and 12(b) below, a
-1-
<PAGE> 3
stock appreciation right with respect to each Option Share (individually, a
"Tandem SAR" and collectively, the "Tandem SARs"). Upon exercise of a Tandem
SAR in accordance with this Agreement, the Company shall, subject to paragraph
6 below, make payment as follows:
(i) the amount of payment shall equal the amount by which
the Fair Market Value of the Option Share on the date of exercise if
the Tandem SAR exceeds the Option Price; and
(ii) payment of the amount determined in accordance with
clause (i) shall be made in shares of Common Stock (valued at their
Fair Market Value as of the date of exercise of such Tandem SAR), or,
in the sole discretion of the Committee, in cash, or partly in cash
and partly in shares of Common Stock.
3. REDUCTION UPON EXERCISE. The exercise of any number
of Tandem SARs shall cause a corresponding reduction in the number of Option
Shares which shall apply against the Option Shares then available for purchase.
The exercise of the Option to purchase any number of Option Shares shall cause
a corresponding reduction in the number of Tandem SARs.
4. CONDITIONS OF EXERCISE. The Option and Tandem SARs
are exercisable only in accordance with the conditions stated in this
paragraph.
(a) Except as otherwise provided in paragraph 12(b) below
or in the last sentence of this subparagraph (a), the Option shall not be
exercisable until the first anniversary of the Grant Date, and on such first
anniversary and thereafter the Option may only be exercised to the extent the
Option Shares have become available for purchase in accordance with the
following schedule:
<TABLE>
<CAPTION>
Anniversary of Percentage of Option Shares
Grant Date Available for Purchase
-------------- ---------------------------
<S> <C>
1st 20%
2nd 40%
3rd 60%
4th 80%
5th 100%
</TABLE>
Notwithstanding the foregoing, all Option Shares shall become available for
purchase if Grantee's employment with the Company and its Subsidiaries (i)
shall terminate by reason of (x) termination by the Company without cause (as
defined in Section 10.2(b) of the Plan), (y) termination by Grantee for good
reason (as defined herein) or (z) Disability, (ii) shall terminate pursuant to
provisions of a written employment agreement, if any, between the Grantee and
the Company which expressly permit the Grantee to terminate such employment
-2-
<PAGE> 4
upon the occurrence of specified events (other than the giving of notice and
passage of time), or (iii) if Grantee dies while employed by the Company or a
Subsidiary.
(b) A Tandem SAR with respect to an Option Share shall be
exercisable only if the Option Share is then available for purchase in
accordance with subparagraph (a).
(c) To the extent the Option or Tandem SARs become
exercisable, such Option or Tandem SARs may be exercised in whole or in part
(at any time or from time to time, except as otherwise provided herein) until
expiration of the Option Term or earlier termination thereof.
(d) Grantee acknowledges and agrees that the Committee
may, in its discretion and as contemplated by Section 7.5 of the Plan, adopt
rules and regulations from time to time after the date hereof with respect to
the exercise of SARs and that the exercise by Grantee of the Tandem SARs will
be subject to the further condition that such exercise is made in accordance
with all such rules and regulations as the Committee may determine are
applicable thereto.
5. MANNER OF EXERCISE. The Option or a Tandem SAR shall
be considered exercised (as to the number of Option Shares or Tandem SARs
specified in the notice referred to in subparagraph (a) below) on the latest of
(i) the date of exercise designated in the written notice referred to in
subparagraph (a) below, (ii) if the date so designated is not a business day,
the first business day following such date or (iii) the earliest business day
by which the Company has received all of the following:
(a) Written notice, in such form as the Committee may
require, designating, among other things, the date of exercise, the number of
Option Shares to be purchased and/or the number of Tandem SARs to be exercised;
(b) If the Option is to be exercised, payment of the
Option Price for each Option Share to be purchased in cash or in such other
form, or combination of forms, of payment contemplated by Section 6.6(a) of the
Plan as the Committee may permit; PROVIDED, HOWEVER, that any shares of Common
Stock or Class B Stock delivered in payment of the Option Price, if such form
of payment is so permitted by the Committee, shall be shares that the Grantee
has owned for a period of at least six months prior to the date of exercise,
and PROVIDED, FURTHER, that, notwithstanding clause (v) of Section 6.6(a) of
the Plan, Option Shares may not be withheld in payment or partial payment of
the Option Price; and
(c) Any other documentation that the Committee may
reasonably require.
Notwithstanding the foregoing, if in order to meet the
exemptive requirements of Rule 16b-3, the Grantee exercises Tandem SARs during
a quarterly window period determined in accordance with paragraph (e)(3) of
such Rule (including by designating in a written notice of exercise delivered
prior thereto that such exercise is to be effective during
-3-
<PAGE> 5
such window period), then the date of exercise of such Tandem SARs shall be
deemed for purposes of this paragraph 5 and for purposes of the Fair Market
Value determinations to be made pursuant to paragraph 2 hereof, to be the day
during such window period on which the highest reported last sale price of a
share of Common Stock as reported on NASDAQ occurred and the Fair Market Value
of such share shall be deemed to be such highest reported last sale price.
6. MANDATORY WITHHOLDING FOR TAXES. Grantee
acknowledges and agrees that the Company shall deduct from the cash and/or
shares of Common Stock otherwise payable or deliverable upon exercise of the
Option or a Tandem SAR an amount of cash and/or number of shares of Common
Stock (valued at their Fair Market Value on the date of exercise) that is equal
to the amount of all federal, state and local taxes required to be withheld by
the Company upon such exercise, as determined by the Committee.
7. DELIVERY BY THE COMPANY. As soon as practicable
after receipt of all items referred to in paragraph 5, and subject to the
withholding referred to in paragraph 6, the Company shall deliver to the
Grantee certificates issued in Grantee's name for the number of Option Shares
purchased by exercise of the Option and for the number of shares of Common
Stock to which the Grantee is entitled by the exercise of Tandem SARs and any
cash payment to which the Grantee is entitled by the exercise of Tandem SARs.
If delivery is by mail, delivery of shares of Common Stock shall be deemed
effected for all purposes when a stock transfer agent of the Company shall have
deposited the certificates in the United States mail, addressed to the Grantee,
and any cash payment shall be deemed effected when a Company check, payable to
Grantee and in an amount equal to the amount of the cash payment, shall have
been deposited in the United States mail, addressed to the Grantee.
8. EARLY TERMINATION OF OPTION AND TANDEM SARS. Unless
otherwise determined by the Committee in its sole discretion, the Option and
Tandem SARs shall terminate, prior to the expiration of the Option Term, at the
time specified below:
(a) If Grantee's employment with the Company and its
Subsidiaries terminates (i) other than (x) by the Company for "cause" (as
defined in Section 10.2(b) of the Plan), (y) by the Grantee with "good reason"
(as defined herein) or (z) by the Company without cause, and (ii) other than
(x) by reason of death or Disability, (y) with the written consent of the
Company or the applicable Subsidiary or (z) without such consent if such
termination is pursuant to provisions of a written employment agreement, if
any, between the Grantee and the Company which expressly permit the Grantee to
terminate such employment upon the occurrence of specified events (other than
the giving of notice and passage of time), then the Option and all Tandem SARs
shall terminate at the Close of Business on the first business day following
the expiration of the 90-day period which began on the date of termination of
Grantee's employment;
(b) If Grantee dies while employed by the Company or a
Subsidiary, or prior to the expiration of a period of time following
termination of Grantee's employment during
-4-
<PAGE> 6
which the Option and Tandem SARs remain exercisable as provided in paragraph
(a), the Option and all Tandem SARs shall terminate at the Close of Business on
the first business day following the expiration of the one-year period which
began on the date of death;
(c) If Grantee's employment with the Company terminates
by reason of Disability, then the Option and all Tandem SARs shall terminate at
the Close of Business on the first business day following the expiration of the
one-year period which began on the date of termination of Grantee's employment;
(d) If Grantee's employment with the Company and its
Subsidiaries is terminated by the Company for "cause" (as defined in Section
10.2(b) of the Plan), then the Option and all Tandem SARs shall terminate
immediately upon such termination of Grantee's employment; or
(e) If Grantee's employment (i) is terminated by Grantee
(x) with "good reason" (as defined herein), (y) with the written consent of the
Company or the applicable Subsidiary or (z) pursuant to provisions of a written
employment agreement, if any, between the Grantee and the Company which
expressly permit the Grantee to terminate such employment upon the occurrence
of specified events (other than the giving of notice and passage of time), or
(ii) by the Company without "cause" (as defined in Section 10.2(b) of the
Plan), then the Option Term shall terminate early only as provided for in
paragraph 8(b) or 12(b) below.
In any event in which the Option and Tandem SARs remain
exercisable for a period of time following the date of termination of Grantee's
employment as provided above, the Option and Tandem SARs may be exercised
during such period of time only to the extent the same were exercisable as
provided in paragraph 4 above on such date of termination of Grantee's
employment. A change of employment is not a termination of employment within
the meaning of this paragraph 8 provided that, after giving effect to such
change, the Grantee continues to be an employee of the Company or any
Subsidiary. Notwithstanding any period of time referenced in this paragraph 8
or any other provision of this paragraph that may be construed to the contrary,
the Option and all Tandem SARs shall in any event terminate upon the expiration
of the Option Term.
"Good reason" for purposes of the Agreement shall be deemed to
have occurred upon the happening of any of the following:
(i) any reduction in Grantee's annual rate of salary;
(ii) either (x) a failure of the Company to continue in
effect any employee benefit plan in which Grantee was participating or
(y) the taking of any action by the Company that would adversely
affect Grantee's participation in, or materially reduce Grantee's
benefits under, any such employee benefit
-5-
<PAGE> 7
plan, unless such failure or such taking of any action, adversely
affects the senior members of the corporate management of the Company
generally;
(iii) the assignment to Grantee of duties and
responsibilities that are materially more oppressive or onerous than
those attendant to Grantee's position immediately after the date
hereof;
(iv) the relocation of the office location as assigned to
Grantee by the Company to a location more than 20 miles from Grantee's
current location without Grantee's consent; or
(v) the failure of the Company to obtain, prior to the
time of any reorganization, merger, consolidation, disposition of all
or substantially all of the assets of the Company or similar
transaction effective after the date hereof, in which the Company is
not the surviving person, the unconditional assumption in writing or
by operation of law of the Company's obligations to Grantee under this
Agreement by each direct successor to the Company in any such
transaction.
9. AUTOMATIC EXERCISE OF TANDEM SARS. Immediately prior
to the termination of the Option, as provided in paragraph 8 above, or the
expiration of the Option Term, all remaining Tandem SARs shall be deemed to
have been exercised by the Grantee.
10. NONTRANSFERABILITY OF OPTION AND TANDEM SARS. During
Grantee's lifetime, the Option and Tandem SARs are not transferable
(voluntarily or involuntarily) other than pursuant to a qualified domestic
relations order and, except as otherwise required pursuant to a qualified
domestic relations order, are exercisable only by the Grantee or Grantee's
court appointed legal representative. The Grantee may designate a beneficiary
or beneficiaries to whom the Option and Tandem SARs shall pass upon Grantee's
death and may change such designation from time to time by filing a written
designation of beneficiary or beneficiaries with the Committee on the form
annexed hereto as Exhibit B or such other form as may be prescribed by the
Committee, PROVIDED that no such designation shall be effective unless so filed
prior to the death of Grantee. If no such designation is made or if the
designated beneficiary does not survive the Grantee's death, the Option and
Tandem SARs shall pass by will or the laws of descent and distribution.
Following Grantee's death, the Option and any Tandem SARs, if otherwise
exercisable, may be exercised by the person to whom such option or right passes
accordingly to the foregoing and such person shall be deemed the Grantee for
purposes of any applicable provisions of this Agreement.
11. NO SHAREHOLDER RIGHTS. The Grantee shall not be
deemed for any purpose to be, or to have any of the rights of, a stockholder of
the Company with respect to any shares of Common Stock as to which this
Agreement relates until such shares shall have been issued to Grantee by the
Company. Furthermore, the existence of this Agreement shall not affect in any
way the right or power of the Company or its stockholders to accomplish any
corporate act, including, without limitation, the acts referred to in Section
10.18 of the Plan.
-6-
<PAGE> 8
12. ADJUSTMENTS.
(a) The Option and Tandem SARs shall be subject to
adjustment (including, without limitation, as to the number of Option Shares
and the Option Price per share) in the sole discretion of the Committee and in
such manner as the Committee may deem equitable and appropriate in connection
with the occurrence of any of the events described in Section 4.2 of the Plan
following the Grant Date.
(b) In the event of any Approved Transaction, Board
Change or Control Purchase, the Option and all Tandem SARs shall become
exercisable in full without regard to paragraph 4(a); PROVIDED, HOWEVER, that
to the extent not theretofore exercised the Option and all Tandem SARs shall
terminate upon the first to occur of the consummation of the Approved
Transaction, the expiration of the Option Term or the earlier termination of
the Option and Tandem SARs pursuant to paragraph 8 hereof. Notwithstanding the
foregoing, the Committee may, in its discretion, determine that the Option and
Tandem SARs will not become exercisable on an accelerated basis in connection
with an Approved Transaction and/or will not terminate if not exercised prior
to consummation of the Approved Transaction, if the Board or the surviving or
acquiring corporation, as the case may be, shall have taken or made effective
provision for the taking of such action as in the opinion of the Committee is
equitable and appropriate to substitute a new Award for the Award evidenced by
this Agreement or to assume this Agreement and the Award evidenced hereby and
in order to make such new or assumed Award, as nearly as may be practicable,
equivalent to the Award evidenced by this Agreement as then in effect (but
before giving effect to any acceleration of the exercisability hereof unless
otherwise determined by the Committee), taking into account, to the extent
applicable, the kind and amount of securities, cash or other assets into or for
which the Common Stock may be changed, converted or exchanged in connection
with the Approved Transaction.
13. RESTRICTIONS IMPOSED BY LAW. Without limiting the
generality of Section 10.9 of the Plan, the Grantee agrees that Grantee will
not exercise the Option or any Tandem SAR and that the Company will not be
obligated to deliver any shares of Common Stock or make any cash payment, if
counsel to the Company determines that such exercise, delivery or payment would
violate any applicable law or any rule or regulation of any governmental
authority or any rule or regulation of, or agreement of the Company with, any
securities exchange or association upon which the Common Stock is listed or
quoted. Except as provided in Section 10.9 of the Plan, the Company shall in
no event be obligated to take any affirmative action in order to cause the
exercise of the Option or any Tandem SAR or the resulting delivery of shares of
Common Stock or other payment to comply with any such law, rule, regulation or
agreement.
14. NOTICE. Unless the Company notifies the Grantee in
writing of a different procedure, any notice or other communication to the
Company with respect to this Agreement shall be in writing and shall be:
-7-
<PAGE> 9
(i) delivered personally to the following address:
Tele-Communications, Inc.
5619 DTC Parkway
Englewood, Colorado 80111-3000
and conspicuously marked "Tele-Communications,
Inc. 1992 Stock Incentive Plan, c/o General
Counsel"; or
(ii) sent by first class mail, postage prepaid, and
addressed as follows:
Tele-Communications, Inc. 1992 Stock Incentive Plan
c/o General Counsel, Tele-Communications, Inc.
P. O. Box 5630
Denver, Colorado 80217
Any notice or other communication to the Grantee with respect to this Agreement
shall be in writing and shall be delivered personally, or shall be sent by
first class mail, postage prepaid, to Grantee's address as listed in the
records of the Company or the employing Subsidiary on the Grant Date, unless
the Company has received written notification from the Grantee of a change of
address.
15. AMENDMENT. Notwithstanding any other provisions
hereof, this Agreement may be supplemented or amended from time to time as
approved by the Committee as contemplated by Section 10.8(b) of the Plan.
Without limiting the generality of the foregoing, without the consent of the
Grantee,
(a) this Agreement may be amended or supplemented (i) to
cure any ambiguity or to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein, or (ii) to add to
the covenants and agreements of the Company for the benefit of Grantee or
surrender any right or power reserved to or conferred upon the Company in this
Agreement, SUBJECT, HOWEVER, to any required approval of the Company's
stockholders and, PROVIDED, in each case, that such changes or corrections
shall not adversely affect the rights of Grantee with respect to the Award
evidenced hereby, or (iii) to make such other changes as the Company, upon
advice of counsel, determines are necessary or advisable because of the
adoption or promulgation of, or change in or of the interpretation of, any law
or governmental rule or regulation, including any applicable federal or state
securities laws; and
(b) subject to Section 10.8(b) of the Plan and any
required approval of the Company's stockholders, the Award evidenced by this
Agreement may be cancelled by the Committee and a new Award made in
substitution therefor, PROVIDED that the Award so substituted shall satisfy all
of the requirements of the Plan as of the date such new Award is
-8-
<PAGE> 10
made and no such action shall adversely affect the Option or any Tandem SAR to
the extent then exercisable.
16. GRANTEE EMPLOYMENT. Nothing contained in this
Agreement, and no action of the Company or the Committee with respect hereto,
shall confer or be construed to confer on the Grantee any right to continue in
the employ of the Company or any of its Subsidiaries or interfere in any way
with the right of the Company or any employing Subsidiary to terminate the
Grantee's employment at any time, with or without cause; SUBJECT, HOWEVER, to
the provisions of any employment agreement between the Grantee and the Company
or any Subsidiary.
17. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of Colorado.
18. CONSTRUCTION. References in this Agreement to "this
Agreement" and the words "herein," "hereof," "hereunder" and similar terms
include all Exhibits and Schedules appended hereto, including the Plan. This
Agreement is entered into, and the Award evidenced hereby is granted, pursuant
to the Plan and shall be governed by and construed in accordance with the Plan
and the administrative interpretations adopted by the Committee thereunder.
All decisions of the Committee upon questions regarding the Plan or this
Agreement shall be conclusive. Unless otherwise expressly stated herein, in
the event of any inconsistency between the terms of the Plan and this
Agreement, the terms of the Plan shall control. The headings of the paragraphs
of this Agreement have been included for convenience of reference only, are not
to be considered a part hereof and shall in no way modify or restrict any of
the terms or provisions hereof.
19. DUPLICATE ORIGINALS. The Company and the Grantee may
sign any number of copies of this Agreement. Each signed copy shall be an
original, but all of them together represent the same agreement.
20. RULES BY COMMITTEE. The rights of the Grantee and
obligations of the Company hereunder shall be subject to such reasonable rules
and regulations as the Committee may, subject to the express provisions of the
Plan, adopt from time to time hereafter.
-9-
<PAGE> 11
21. GRANTEE ACCEPTANCE. Grantee shall signify acceptance
of the terms and conditions of this Agreement by signing in the space provided
below and returning a signed copy to the Company.
ATTEST: TELE-COMMUNICATIONS, INC.
_________________________ By:________________________________
Assistant Secretary Name:
Title:
ACCEPTED:
___________________________________
Grantee
-10-
<PAGE> 12
Schedule 1 to Non-Qualified Stock
Option and Stock Appreciation
Rights Agreement dated as of
November 11, 1992
TELE-COMMUNICATIONS, INC. 1992 STOCK INCENTIVE PLAN
Grantee:
Grant Date: November 11, 1992
Option Price: $16.75 per share
Option Shares: __________ shares of the Company's Class A
Common Stock, $1.00 par value per share
-11-
<PAGE> 13
Exhibit B to Non-Qualified Stock Option
and Stock Appreciation Rights
Agreement dated as of
November 11, 1992
TELE-COMMUNICATIONS, INC. 1992 STOCK INCENTIVE PLAN
DESIGNATION OF BENEFICIARY
I, __________________________________________ (the "Grantee"), hereby
declare that upon my death __________________________________________ (the
Name
"Beneficiary") of_____________________________________________________________,
Street Address City State Zip Code
who is my _____________________________________, shall be entitled to the
Relationship to Grantee
Option, Tandem SARs and all other rights accorded the Grantee by the
above-referenced grant agreement (the "Agreement").
It is understood that this Designation of Beneficiary is made pursuant
to the Agreement and is subject to the conditions stated herein, including the
Beneficiary's survival of the Grantee's death. If any such condition is not
satisfied, such rights shall devolve according to the Grantee's will or the
laws of descent and distribution.
It is further understood that all prior designations of beneficiary
under the Agreement are hereby revoked and that this Designation of Beneficiary
may only be revoked in writing, signed by the Grantee, and filed with the
Company prior to the Grantee's death.
_______________________________ ________________________________
Date Grantee
<PAGE> 1
EXHIBIT 4.16
<PAGE> 2
Dear Fellow Employee:
I am pleased to inform you that on November 10, 1989, pursuant to the
terms of the Tele-Communications, Inc. 1982 Incentive Stock Option Plan
(relating to options to be granted to selected officers and other key employees
of the Company and its subsidiaries) the Board of Directors has granted to you
an option to acquire that number of shares of TCI Class A Common Stock shown
below, for $______ per share, at any time after November 10, 1990 and before
November 10, 1994.
Other information concerning the Plan and TCI is contained in the
enclosed Prospectus portion of Registration Statement No. 2-87938 which
registers the shares issuable under your option. The Prospectus is dated
December 8, 1983 and is the latest, since it incorporates by reference all
reports and other documents required to be filed with the SEC by TCI since said
date. Should you desire any or all of the documents incorporated by reference,
do not hesitate to request them. Also enclosed is a copy of TCI's latest
Annual Report to Shareholders.
I suggest you retain this letter and its enclosures in a safe place.
If you have any questions concerning this letter or its enclosures, please call
me or Ted Miller of our Legal Department.
Sincerely,
TELE-COMMUNICATIONS, INC.
John M. Draper
Vice President and General Counsel
The number of shares of TCI Class A Common Stock covered by your
above-described option is: ____________.
<PAGE> 1
EXHIBIT 5
October 24, 1994
Tele-Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, CO 80111
Gentlemen:
As counsel for Tele-Communications, Inc., a Delaware corporation
("TCI"), we have examined and are familiar with the Post- Effective Amendment
No. 1 to Form S-4 Registration Statement (Reg. No. 33-54263) on Form S-8
Registration Statement of TCI (the "S-8 Registration Statement"). The S-8
Registration Statement relates to up to 9,750,336 shares of TCI Class A Common
Stock, par value $1.00 per share ("TCI Class A Stock"), that are issuable upon
exercise of stock options (the "Options") or stock appreciation rights (the
"SARs") granted under the Tele-Communications, Inc. 1994 Stock Incentive Plan
(the "Plan"). TCI granted the Options and the SARs, in connection with certain
Assumption and Amended and Restated Stock Option Agreements (the "Exchange
Agreements"), in substitution for stock options and stock appreciation rights
previously granted (or assumed) by TCI Communications, Inc. (formerly
Tele-Communications, Inc. or "Old TCI") and Liberty Media Corporation
("Liberty") (collectively, the "Assumed Options and SARs") and assumed by TCI
pursuant to an Agreement and Plan of Merger, dated as of January 27, 1994, as
amended (the "Merger Agreement"), by and among TCI, Liberty, Old TCI, TCI
Mergerco, Inc. and Liberty Mergerco, Inc.
In furnishing our opinion, we have examined all agreements and other
documents as we have deemed relevant and necessary as the basis for our
opinion, including the Plan, the Merger Agreement, the forms of the Exchange
Agreements, the agreements pursuant to which the Assumed Options and SARs were
granted (or assumed) by Old TCI or Liberty and certain records of corporate
action taken by the Board of Directors of TCI. In all such examinations, we
have assumed the conformity to the original of all copies of documents
submitted to us as conformed or photostatic copies.
Based upon the foregoing, it is our opinion that the shares of TCI
Class A Stock that may be issued and sold upon the proper exercise of the
Options and SARs will be, when issued and sold in accordance with the terms of
the Plan and the applicable Exchange Agreements, duly authorized, validly
issued, fully paid and nonassessable.
<PAGE> 2
Tele-Communications, Inc.
October 24, 1994
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
S-8 Registration Statement. In giving this consent, we do not thereby admit
that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
BAKER & BOTTS, L.L.P.
<PAGE> 1
EXHIBIT 23.2
<PAGE> 2
CONSENT OF INDEPENDENT AUDITORS
THE BOARD OF DIRECTORS AND STOCKHOLDERS
TELE-COMMUNICATIONS, INC.:
We consent to the incorporation by reference in Post-Effective Amendment No. 1
to Form S-4 on Form S-8 Registration Statement of Tele-Communications, Inc. of
our reports dated March 21, 1994, relating to the consolidated balance sheets
of TCI Communications, Inc. (formerly Tele-Communications, Inc.) and
subsidiaries as of December 31, 1993 and 1992, and the related consolidated
statements of operations, stockholder's equity, and cash flows for each of the
years in the three-year period ended December 31, 1993, and the related
financial statement schedules, which reports appear in the December 31, 1993
Annual Report on Form 10-K, as amended, of TCI Communications, Inc. and to the
reference to our firm under the heading "Experts" in the Registration
Statement. Our reports refer to a change in the method of accounting for
income taxes in 1993.
KPMG PEAT MARWICK LLP
Denver, Colorado
October 24, 1994
<PAGE> 1
EXHIBIT 23.3
<PAGE> 2
CONSENT OF INDEPENDENT AUDITORS
THE BOARD OF DIRECTORS AND STOCKHOLDERS
LIBERTY MEDIA CORPORATION:
We consent to the incorporation by reference in Post-Effective Amendment No. 1
to Form S-4 on Form S-8 Registration Statement of Tele-Communications, Inc. of
our report dated March 18, 1994, relating to the consolidated balance sheets of
Liberty Media Corporation and subsidiaries (Successor) as of December 31, 1993
and 1992, and the related consolidated statements of operations, stockholders'
equity, and cash flows for the years ended December 31, 1993 and 1992 and the
period from April 1, 1991 to December 31, 1991 (Successor Periods) and the
consolidated statements of operations, stockholders' equity, and cash flows of
Liberty Media (a combination of certain programming interests and cable
television assets of Tele-Communications, Inc.) (Predecessor) for the period
from January 1, 1991 to March 31, 1991 (Predecessor Period), which report
appears in the Form 8-K of TCI Communications, Inc. (formerly
Tele-Communications, Inc.) dated April 6, 1994 and to the reference to our firm
under the heading "Experts" in the Registration Statement. Our report refers
to a change in the method of accounting for income taxes in 1993.
KPMG PEAT MARWICK LLP
Denver, Colorado
October 21, 1994
<PAGE> 1
EXHIBIT 23.4
<PAGE> 2
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Post-Effective
Amendment No. 1 to Form S-4 on the Registration Statement on Form S-8
(No. 33-54263) of Tele-Communications, Inc. of our report dated
February 4, 1994, which appears on page 12 of the TCI Communications, Inc. and
Tele-Communications, Inc. Current Report on Form 8-K dated August 26, 1994. We
also consent to the reference to us under the heading "Experts" in such
Registration Statement.
PRICE WATERHOUSE LLP
Norfolk, Virginia
October 20, 1994
